[2009] UKFTT 222 (TC)

TC00172

Appeal number LON/2009/8035
(formerly LON/2008/7163)

Excise duty – restoration – vehicle seized for being used for smuggling – third party owner – whether owner innocent of and blameless for the smuggling – yes – whether decision not to offer vehicle for restoration reasonable – no – whether third party owner had taken reasonable steps to prevent the vehicle being used for smuggling – no – appeal allowed and further review directed 

FIRST-TIER TRIBUNAL

TAX CHAMBER

	HASEEB MINI SUPERMARKET LIMITED
(substituted as Appellant by the Direction herein
for MSAWER KASHMIRI)
		Appellant

	- and -

	THE COMMISSIONERS FOR HER MAJESTY’S
	REVENUE AND CUSTOMS (Excise Duty)	Respondents

			TRIBUNAL: 	JOHN WALTERS QC
					K. S. GODDARD						

Sitting in public in London on 28 July 2009

J. Sirrell, Palmers, Solicitors, for the Appellant 

R. Jones, Counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs for the Respondents
© CROWN COPYRIGHT 2009

DECISION

1.	This is an appeal under section 16, Finance Act 1994 against a decision on review by the Respondents not to restore to Haseeb Mini Supermarket Limited or Msawer Kashmiri an Audi Q7 estate car, registration number BP57 WGN (“the Vehicle”).  The Vehicle was seized by the Respondents at Dover Eastern Docks on 17 July 2008, together with 463.5 litres of mixed brands of wine and 1.4 litres of gin (attracting £912.45 in excise duty) which had been imported into the UK in the Vehicle.
2.	The Vehicle is the subject of a finance (hire purchase) agreement under which the Bank of Scotland is the owner and Haseeb Mini Supermarket Limited is the hirer.  Although Msawer Kashmiri is effectively the owner of Haseeb Mini Supermarket Limited, it seemed to the Tribunal that the appeal ought to have been brought in the name of Haseeb Mini Supermarket Limited (being the entity with the right of control of the Vehicle) rather than Msawer Kashmiri, in whose name the appeal was actually brought. Accordingly the Tribunal directs under rule 9(1)(a) of the Tribunal’s new procedural rules that Haseeb Mini Supermarket Limited is substituted for Msawer Kashmiri as appellant in the appeal.  Neither side objected to the Tribunal’s proposal to make this direction.
3.	Hereinafter Haseeb Mini Supermarket Limited is referred to as “the Appellant Company” and Msawer Kashmiri is referred to as “Msawer”, to distinguish him from his son, Faisel Kashmiri (hereinafter “Faisel”) who also features in the facts relevant to the appeal.
The facts
4.	We heard oral evidence from Msawer, Syed Ali and Officer David Michael Harris.  We also had before us a bundle of documents prepared by the Respondents and a smaller bundle of documents handed up by Mr. Sirrell (which for the most part duplicated documents in the Respondents’ bundle).  From the evidence we find the following facts.
5.	 When the Vehicle was stopped by Customs, on 17 July 2008, the driver was Faisel, who is 30 years old, and he had with him two male passengers, friends of his.  In response to initial Customs questioning, Faisel said that he and his friends had been away since the previous day.  He said he owned the Vehicle but did not have the registration documents with him.  (He said later it was a company vehicle and may have referred at some point to his father being the owner.) He said that he had brought back 100 cases of wine and 2 bottles of gin for a big barbecue party for all the family.  He also said that he had brought back to the UK some 3 to 4 weeks earlier a quantity of wine (30 cases) which he had said was for an engagement party. He had purchased the wine using a credit card in the name of a Mr. Afzal, who he said was his cousin, or “almost a cousin” and was not one of the travellers.
6.	Following interviews, HMRC were satisfied that the alcohol was held for a commercial purpose, which rendered the alcohol and the Vehicle liable to forfeiture.  They were therefore seized and Faisel was issued with a “Seizure Information Notice” and Customs notice 12A “Goods and/or vehicles seized by Customs”.
7.	The seizure was not challenged and the alcohol and the Vehicle were condemned as forfeit.
8.	Faisel had asked his father, Msawer, if he could borrow the Vehicle on the morning of the day before the seizure, and Msawer had allowed Faisel to borrow the Vehicle, on the understanding that Faisel would use it to go out with friends.
9.	Msawer works in a shop in north London operated by the business run by the Appellant Company.  Msawer spends virtually all his time working there and the conversation in which Faisel asked to borrow the Vehicle took place at the shop.
10.	The next time Msawer saw Faisel was some 2 or 3 days later.  He asked him where the Vehicle was.  Faisel told him an untrue story about the Vehicle being in the garage to repair some minor damage suffered while it was being borrowed.
11.	Msawer was vague and inconsistent in his evidence about how it was that he first found out the truth – that the Vehicle had been seized by HMRC.  At first he said he had received a letter from HMRC.  Then he said that Faisel had eventually (“after a few days”) told him.
12.	Faisel explained to Msawer that he had been using the Vehicle to import alcohol.
13.	Msawer signed a letter dated 29 July 2008, which was sent to HMRC.  It was written on the Appellant Company’s headed paper, but included Msawer’s name and address.  It carried the reference number “1274098”, which was the reference on the seizure documentation which had been issued at the time of the seizure by HMRC to Faisel as the driver of the Vehicle.
14.	The letter was addressed to “To Whom It May Concern”.  Msawer said that Faisel had drafted it.  Msawer stated in the letter that on behalf of the Appellant Company he apologised for the incident which led to the seizure and asked for release of the Vehicle.  Msawer offered reassurance that “this kind of incident will not happen again with any of our company cars or company employees acting on behalf of our company.  Furthermore the driver [Faisel] regrets taking the company car for personal use and new guidelines have been put in place where no driver may take a company car for personal use”. Msawer enclosed with the letter copies of the following documents relating to the Vehicle: a finance agreement, a registration certificate and an insurance certificate.  These documents showed that the Appellant Company was the registered keeper of the vehicle, that Msawer, his wife and Faisel were insured to drive it and that the Appellant Company had entered into a finance (hire purchase) agreement to purchase the Vehicle.
15.	The finance agreement appears to have been entered into on or about 22 March 2008. The cash price of the Vehicle had been £44,995.
16.	The registration certificate, although in the Appellant Company’s name, included the name of a Mr. Ali.
17.	This was explained in the evidence of Syed Ali. He lives in Birmingham and has known Msawer for about 15 years.  Msawer had mentioned to him that he was looking for a new car and thought that Birmingham would be a good place to find one that represented a good deal. He asked Mr. Ali to find one for him and Mr. Ali found the Vehicle, a 4x4 Audi, available in a Birmingham showroom.  He attended at the showroom and (through a mistake of the showroom) his name was included on the registration certificate.  He confirmed that he has no connection with the Appellant Company. Msawer (not Mr. Ali) had collected the Vehicle from the showroom.
18.	HMRC Border Force (Post Seizure Unit) wrote to Msawer on 11 August 2008 acknowledging receipt of the letter dated 29 July 2008 and stating that HMRC has to collate all the relevant information from the officers involved in the seizure, in order to consider his request for restoration of the Vehicle. A further letter dated 21 August 2008 was sent to Msawer by the Post Seizure Unit stating that the Vehicle would not be restored. 
19.	Mr. Sirrell’s firm, Palmers, was then involved, having received brief instructions from an agency whom, we find, Faisel had approached. Palmers wrote on 26 September 2008 to the Post Seizure Unit, apparently on behalf of Msawer confirming that the Vehicle was owned by the Appellant Company and stating that they understood that Faisel had obtained the alcohol for a family wedding and enclosing a non-specific form of invitation.  They stated that their instructions were that the alcohol had not been obtained with a view to any kind of commercial transaction.  They stated that the Appellant Company does not have a licence to sell alcohol and is run as a grocery.  They stated that Msawer had been unaware that Faisel had taken the Vehicle to obtain the alcohol and “had spoken with him concerning his actions on the day” and on that basis asked again for restoration of the Vehicle.
20.	After Palmers had given HMRC confirmation of the Appellant Company’s authority to act on its behalf, HMRC (through Officer Gordon Murray) wrote to Palmers on 10 October 2008 – the decision on review against which the appeal is brought.
21.	The review decision was that the vehicle should not be restored to the Appellant Company. After giving details of the seizure and the interviews with Faisel and his fellow travellers, in the review decision letter Officer Murray gave a summary of HMRC’s policy for the restoration of private vehicles. It stated inter alia that vehicles may be restored at the discretion of HMRC subject to payment of a fee “if the vehicle was owned by a third party who was not present at the time of the seizure, and can show that they were both innocent of and blameless for the smuggling attempt”.  The policy went on to state that “if, in addition to being both innocent and blameless the third party demonstrates that they had taken reasonable steps to prevent smuggling in the vehicle then consideration may be given to restoring it free of charge”.  The policy also contained the proviso that a vehicle would not normally be restored to a third party in a situation where that would be tantamount to restoring it to the person responsible for the smuggling attempt.
22.	As far a consideration of the particular case was concerned, Officer Murray listed a number of factors which he took into account in reaching his decision.  Officer Murray was of the view that the alcohol had been purchased for onward sale in the UK.  He stated: “Mr. Kashmiri [Faisel] said in his interview that the business [of the Appellant Company] did not sell alcohol.  To the best of my knowledge, in general, supermarkets sell alcohol, wine beer etc.  On the balance of probability I consider that [the Appellant Company’s] business sells alcohol and the imported wine may well have been destined for this outlet”.
23.	In particular regard to the question of restoration of the Vehicle, Officer Murray stated in his letter that HMRC’s general policy is non-restoration of a vehicle used for the illicit importation of a large quantity of alcohol.  He went on: “Mr Faisel Kashmiri was the driver of the Audi vehicle on the day it was seized. He said that the vehicle belonged to the company.  Mr. F. Kashmiri is also insured to drive the vehicle.  During his interview he said that he was an employee of the [Appellant Company’s] business, he said he looked after the business.  A Companies House check in fact shows that Mr. Faisel Kashmiri is a Director of the company.  He was appointed on 31 October 2007. Records show that he was also appointed Company Secretary on 28 January 2007.  Mr. F. Kashmiri is more than simply an employee in the business, he is also a Director and Company Secretary.  Hence restoration of the Audi vehicle of the company vehicle to the company [sic] would be tantamount to restoration of the vehicle to Mr. [Faisel] Kashmiri.”
24.	Officer Murray also cited dicta in Lindsay v Commissioners of Customs and Excise which indicate that forfeiture of the vehicle of a person who smuggles for a profit is not, except in exceptional circumstances, a disproportionate sanction, whatever the value of the vehicle.
25.	Officer David Michael Harris, who gave oral evidence, told the Tribunal that he had examined all the details of the case and the review conducted by Officer Murray and would have come to the same conclusion and decision had he reviewed the case.  He adopted Officer Murray’s decision and his reasoning.  He told the Tribunal that Officer Murray was not available to give evidence because he had been dismissed, but not in relation to circumstances arising out of this appeal.
26.	Officer Harris made it clear that the main reason for Officer Murray’s decision not to offer the Vehicle for restoration was his conclusion that in the circumstances of Faisel’s connection to the Appellant Company, restoration of the Vehicle to the Appellant Company would be tantamount to restoration of it to Faisel.
27.	   Officer Harris had informally telephoned the finance company (Royal Bank of Scotland) with whom the finance agreement had been concluded by the Appellant Company.  From his telephone call he understood the Royal Bank of Scotland to be unaware that the Vehicle had been seized, and that the finance agreement was still regarded by them as current.  Although Officer Harris had understood from the person he spoke to at the Royal Bank of Scotland that the Appellant Company was in arrears in payments under the finance agreement, this was disputed by Msawer in evidence before us and, since Officer Harris was entirely vague as to the identity, seniority and reliability of the person he spoke to at the Royal Bank of Scotland, the Tribunal finds (if it is relevant at all) that the Appellant Company is not in arrears in payments under the finance agreement.
28.	Following receipt of the review decision letter, Faisel’s appointment as Director or Secretary of the Appellant Company was terminated on 20 October 2008, and the relevant Companies House form 288b was in evidence.  On the same day, Mr. Sirrell of Palmers, Solicitors, saw both Msawer and Faisel and received full instructions.  There was a delay in getting the papers from the agents who had previously instructed Palmers, but once they were to hand Mr. Sirrell, on instructions, wrote to Officer Murray in response to the review decision letter, on 6 November 2008.
29.	He wrote in effect that the Appellant Company did not wish to contest HMRC’s decision that Faisel had imported the alcohol for commercial purposes. He renewed the attempt to obtain restoration of the Vehicle to the Appellant Company (or Msawer), noting that the basis of Officer Murray’s decision was that by such restoration the Vehicle would in effect be restored to Faisel as a director of the Appellant Company.
30.	Mr. Sirrell gave the history of the Appellant Company’s business. Msawer and his two brothers originally purchased the supermarket in 1980.  In 2000, Msawer bought his brothers out and the business was put into the Appellant Company.  Msawer was the sole director of the Appellant Company until 2007, when Faisel was appointed a co-director, Msawer having it in mind that he would at some point retire and hand the business over to Faisel. Faisel, however, has in fact been little engaged in the running of the business and in October 2008 was removed as a director.
31.	We find that Msawer, on religious grounds, does not take alcohol and that the supermarket does not and never has, since Msawer’s involvement, stocked or sold alcohol. We were shown a copy of a letter from Islington Council Licensing Team, Public Protection Division, to Palmers which confirmed that Islington Council had no record of the Appellant Company (or the address of the business) having a premises licence or applying for one.  The Council also confirmed that there was no record of a personal licence (to sell alcohol) being registered with Islington Council for Msawer, although the letter added that it is possible that he may have a personal licence registered with another local authority.  
32.	Mr. Sirrell’s letter to Officer Murray of 6 November 2008 also explained that the Vehicle was used as Msawer’s and his wife’s motor vehicle.  Msawer allowed Faisel to drive the vehicle on occasions, usually at the weekend.
33.	We find that from the time in July 2008 when Faisel told Msawer that the Vehicle had been seized because of his importation of alcohol using it, relations between the two deteriorated to the point when, in October, Faisel left the family home and his directorship of the Appellant Company was terminated.  Faisel is not now insured to drive the Vehicle, the insurance having lapsed following seizure of the Vehicle.
34.	We also find that Msawer, on religious and other grounds, would never have permitted Faisel to use the Vehicle for the importation of alcohol whether legally or illegally.
35.	We also find that from July 2008, as indicated in the letter drafted by Faisel and sent by Msawer to HMRC, Msawer would not have given permission to Faisel to use the Vehicle for personal travel.  We add that he would not have given permission to Faisel to use the Vehicle for business travel either, because there was a van available to the Appellant Company for business use.
The submissions
36.	Mr. Sirrell, for Msawer and the Appellant Company, submitted that Msawer and the Appellant Company had nothing to do with the smuggling attempt and were unaware of it.
37.	 He contended that there were two matters which most influenced Officer Murray in his review decision not to restore the Vehicle.  The first was his conclusion “on the balance of probability” that the Appellant Company’s shop sells alcohol and that the wine imported by Faisel “may well have been destined for this outlet”.  The second was his conclusion following from his understanding of Faisel’s connection to the Appellant Company that “restoration of the [Vehicle] of the company vehicle to the company [sic] would be tantamount to restoration of the Vehicle to [Faisel]”.
38.	He submitted that Officer Murray’s conclusion on the first matter had informed his conclusion on the second.  He criticised Officer Murray (and Officer Harris insofar as he supported Officer Murray’s actions and decision) for not checking whether the Appellant Company sold alcohol, having regard to Msawer’s statement that it did not.  If either Officer had checked, he would have found out that the Appellant Company’s shop did not and never had sold alcohol.
39.	On the question of whether restoration of the Vehicle to the Appellant Company, or to Msawar, would be tantamount to restoration of it to Faisel, Mr. Sirrell submitted that at no time had Faisel had any right to use the Vehicle.  He had always had to ask Msawar’s permission to do so.
40.	Mr. Sirrell submitted that as a matter of HMRC’s policy, the Appellant Company, or Msawar, was a third party both innocent of and blameless for the smuggling attempt.  Further, he had, in all the circumstances, taken reasonable steps to prevent smuggling in the Vehicle.  These steps had been to require Faisel to ask permission when he wanted to borrow the Vehicle.  It was not realistic to expect a father of a 30-year old son to take any more detailed precautions against the possibility that the Vehicle would be used by the son for smuggling.
41.	Mr. Sirrell submitted that the passages in Lindsay relied upon by the Commissioners were not apt to show that a refusal to restored the Vehicle to the Appellant Company, or Msawar, as a third party, was not disproportionate.  He contended that we should have regard to the  relatively high value of the Vehicle, and the fact that non-restoration of it would still leave the Appellant Company with a liability in the order of £50,000 to Royal Bank of Scotland, without the asset, for the acquisition of which that liability was incurred.
42.	Mr. Jones, for HMRC, submitted that HMRC’s decision to refuse to restore the Vehicle was reasonable on the grounds that to do so would have gone against the policy not to restore a vehicle to a third party when to do so would be tantamount to restoring it to the person who had been responsible for the smuggling attempt (Faisel).  He contended that both at the time of the seizure and at the time of the review decision, Faisel was a person entitled to use the Vehicle.  This situation only changed when, on 20 October 2008, Faisel’s directorship of the Appellant Company was terminated.  He submitted that this termination of Faisel’s directorship was itself a direct result of receipt of the review decision letter dated 10 October 2008, and cautioned that the Tribunal should be sceptical of the Appellant’s case that the relationship between Msawar and Faisel was such that restoration of the Vehicle to the Appellant Company would not mean that it became once again available to Faisel on similar terms as before.
43.	As a matter of the Tribunal’s jurisdiction in an appeal brought under section 16, Finance Act 1994, he accepted that the Tribunal can take account of the evidence received at the hearing of the appeal to the extent that such evidence was relevant to the state of the facts as they existed when the decision appealed against was made (10 October 2008).
44.	Mr. Jones submitted that it was only the final (review) decision not to restore the Vehicle in October 2008 which caused relations between Msawar and Faisel to deteriorate to the point when we could accept that Msawar would not be willing to allow Faisel the use of the Vehicle.  He pointed to the fact that Faisel left the family home in October (and not before) and also to the fact that it was not until 20 October 2008 that Faisel’s directorship of the Appellant Company was terminated.
45.	Mr. Jones submitted that the Msawar had been reckless in allowing Faisel to use the Vehicle without any assurance that it would not be used for smuggling.  He did not ask Faisel where he would be going with the Vehicle or his purpose in wanting to use it.  He also contended that Msawar and/or the Appellant Company bore the responsibility of not being frank with HMRC in the period immediately following the seizure.  The case now advanced had been put for the first time on 10 November 2008.  Msawar’s acceptance of HMRC’s decision that the importation was for commercial purposes renders insignificant any point he might take on Officer Murray’s decision that the Appellant Company’s supermarket was probably the intended outlet for sale of the imported alcohol.
Our decision
46.	We find that Msawer’s attitude to alcohol, based on religious grounds, that he would not stock or sell it through the Appellant Company’s premises, and that he would not willingly have allowed Faisel to use the Vehicle to import alcohol whether illegally or otherwise, was genuinely held and we accept that the Appellant Company was at all times a third party in the context of the importation which was innocent of and blameless for the smuggling.
47.	We also find that as soon as Msawer was appraised of the true situation – that the Vehicle had been seized because Faisel had used it in an attempt to smuggle alcohol into the UK – relations between Msawar and Faisel deteriorated to the extent that he would not have allowed Faisel the use of the vehicle if it had been restored to the Appellant Company.  We consider that the letter dated 29 July 2008 (and Msawar’s oral evidence) are sufficient evidence to support this finding.
48.	We accept, and find, that the final refusal to restore the Vehicle communicated in Officer Murray’s review decision letter of 10 October 2008 in all likelihood caused the relationship between Msawer and Faisel to deteriorate further and that that deterioration resulted in Faisel’s leaving the family home and in the termination of his directorship of the Appellant Company.
49.	However we do not accept that before 10 October 2008 the relationship between Msawer and Faisel was such that, had the Vehicle been restored to the Appellant Company, Msawer would have allowed Faisel the use of it.
50.	We criticise Officer Murray’s decision not to accept the assurances given him that the Appellant Company’s supermarket did not stock or deal in alcohol without checking the matter, either through a local office of HMRC or by contacting the Licensing Team of Islington Council. It was in the circumstances unreasonable of Officer Murray to rely on “the best of [his] knowledge” that “in general, supermarkets sell alcohol, wine, beer etc.”.  We regard the reference to the Appellant Company’s supermarket, included in the Statement of Case (at paragraph 23(n)), as “a retail store from which alcohol could be supplied, whether or not it has a licence to do so” as irrelevant in the face of the evidence that alcohol was not supplied from the supermarket, and as indicative of a prejudiced attitude on the part of the HMRC to the facts of the case that is generally displayed by the evidence. 
51.	We accept Mr. Sirrell’s submission that Officer Murray’s decision on the point of the availability of the supermarket as an outlet for smuggled alcohol is likely to have informed his further, crucial, decision that restoration of the Vehicle to the Appellant Company would be tantamount to restoration of it to Faisel.
52.	We also criticise Officer Murray’s conclusion that restoration to the Appellant Company would be tantamount to restoration to Faisel, simply from the evidence that at that point (pre- 20 October 2008) Faisel was a director of the Appellant Company and that after he had ceased to be a director the car remained “a family car as much as a company car”.
53.	Holding a directorship of the Appellant Company would not automatically entitle Faisel to use of the Vehicle.  In fact, permission from Msawer was always necessary.  Further, Faisel never had any or any significant shareholding in the Appellant Company, whereas Msawer owned all or substantially all the shares.  Officer Murray made unjustifiable and unreasonable assumptions as to the availability of the Vehicle to Faisel from the results of his researches as to Faisel’s position as Director and Company Secretary of the Appellant Company and his assumption (which we find to be incorrect) that Msawer would in any circumstances let Faisel have the use of the Vehicle if it were restored.
54.	We also hold that HMRC’s reliance on Lindsay to justify, as a proportionate response, the seizure from the Appellant Company of the Vehicle, a valuable asset with a significant finance debt outstanding to Royal Bank of Scotland, was incorrect as a matter of law.
55.	The rationale of the Court of Appeal’s decision in Lindsay is that the very act of using a car for smuggling in the knowledge that if one is caught the car will probably be seized weighs conclusively against any argument that the seizure is a disproportionate response, whatever the value of the car.
56.	This reasoning is not directly applicable to a third party owner, as Officer Murray assumed.  A third party owner, at least where he/it is innocent of and blameless for the smuggling, as we find the Appellant Company (and Msawer) to be, cannot be said to have to any extent brought the seizure (as to which he/it is the principal sufferer) upon himself/itself.  Therefore the seizure without offer of restoration may be, and we find in the circumstances of this case is, disproportionate and unreasonable.
57.	Turning to the question of whether, in implementation of HMRC’s policy, Mr. Jones is right in his submission that Msawer or the Appellant Company had not taken reasonable steps to prevent Faisel using the Vehicle for smuggling, we find that he took no steps other than generally requiring Faisel to obtain Msawer’s permission before he used the Vehicle.
58.	Taking full account of Mr. Sirrell’s point that one cannot expect a father to cross-examine his 30-year old son about his intended use of a motor vehicle, we find on the evidence that Msawer made no enquiries about where Faisel would take the Vehicle and laid down no rules as to what he would regard as acceptable use of it (which of course we would expect to include a prohibition of its use for smuggling).  In the circumstances we find that the Appellant Company cannot be regarded as a third party which took reasonable steps to prevent smuggling in the Vehicle, although, as we have said, we find that the Appellant Company was innocent of and blameless for the smuggling attempt.
59.	For the reasons indicated, in summary, we find that Officer Murray’s decision that restoration of the Vehicle to the Appellant Company would be tantamount to restoration of it to Faisel to be unreasonable.  We also hold that his reliance on Lindsay to refute any allegation that non-restoration of the Vehicle to the Appellant Company would be disproportionate was wrong in law.  We find that Officer Murray’s decision not to restore the Vehicle to the Appellant Company was disproportionate to the Appellant Company’s culpability in this matter, which we consider was in effect its failure (through Msawer) to take reasonable steps to prevent smuggling in the Vehicle by Faisel.  Officer Murray’s decision was therefore unreasonable on this ground also.  
60.	We therefore allow the appeal and direct pursuant to section 16 Finance Act 1994 HMRC to carry out a further review of the refusal to offer restoration of the Vehicle to the Appellant Company.  The review should take full account of the findings of fact which we have made.  It must be conducted within 28 days of the date of release of this Decision and it must be conducted by an Officer who has not hitherto had any involvement with this case.  If consideration is given to restoring the Vehicle to the Appellant Company conditionally on payment of a fee, then in conducting the review HMRC should have regard, in fixing the fee, to the requirement that it should be proportionate in all the circumstances, and particularly to the amount of excise duty sought to be evaded (£912.45). 
61.	Although no application for costs was made at the hearing, we indicate that we are minded to make no order for any payment on account of costs. 

JOHN WALTERS QC

JUDGE OF THE FIRST-TIER TRIBUNAL 
RELEASE DATE: 1 September 2009