[2009] UKFTT 239 (TC)

TC00188

Appeal number:  EDN/09/8003

Excise duty:  vehicles containing rebated fuel – whether one occasion only – Appellant not credible - Hydrocarbon Oil Duties Act 1979, s.12(2) and 13 -Appeal dismissed.

FIRST-TIER TRIBUNAL

TAX 

	DAVID KIRKALDY	Appellant

	- and -

	THE COMMISSIONERS FOR HER MAJESTY’S
	REVENUE AND CUSTOMS (EXCISE DUTY)	Respondents

				TRIBUNAL JUDGE: 	JOHN M BARTON, WS 
				(Member):		IAN M P CONDIE, CA

Sitting in public in Edinburgh on Wednesday 2 September 2009

David Kirkaldy, for the Appellant

Kim Tilling, instructed by the General Counsel and Solicitor to HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2009

DECISION

1.	This is an Appeal against an amended assessment dated 29 January 2009 for Excise Duty of £2,845 in respect of the use of rebated oil in a Ford Escort van number W519 CJN and a Suzuki Vitara M2 BMK over the period from 1 August 2005 to 28 November 2007.
2.	Mr Kirkaldy accepted that he was responsible for the fuel which was put into each vehicle.  He also admitted using rebated oil in these vehicles immediately prior to 28 November 2007, in contravention of Section 12(2) of the Hydrocarbon Oil and Duties Act 1979 (‘HODA’).  Section 13 of HODA provides:
“(1A) Where oil is used, or is taken into a road vehicle, in contravention of 12(2) above, the Commissioners may-

(a)  assess an amount equal to the rebate on like oil at the rate in force at the time of the contravention as being excise duty from any person who used the oil or was liable for the oil being taken into the road vehicle, and

(b)  notify him or his representative accordingly.”

3.	The question before the Tribunal was to determine whether the Commissioners’ assessment of the amount of rebated oil which had been used by Mr Kirkaldy in these vehicles, and the rebated duty on the same, had been calculated reasonably.

4.	The Tribunal did not find Mr Kirkaldy to be a credible witness and in particular, the Tribunal did not accept his explanation that only on one occasion had he put five gallons of rebated oil into each vehicle.

5.	The Tribunal accepted the evidence adduced for the Commissioners for Her Majesty's Revenue and Customs ("HMRC") and in particular that on 28 November 2007, the running tanks in each of the said vehicles contained 100% rebated fuel.  In the absence of credible evidence to the contrary, the Tribunal considers that it is reasonable to infer that Mr Kirkaldy has been using rebated fuel in the Ford Escort since 22 November 2006 (when it was acquired) and in the Suzuki Vitara since 1 August 2005.  

6.	The Tribunal further accepts as reasonable, the finding that the mileage of the Ford Escort was 13,390 miles per annum and that its consumption was 40.8 miles per gallon, and that the mileage of the Suzuki Vitara was 20,000 miles per annum and that its consumption was 36 miles per gallon; and that an allowance of £682 should be made for diesel purchased in respect of which excise duty had been paid.  On the basis of the foregoing, it has reasonably been calculated that the amount of rebated oil which has been used by Mr Kirkaldy in these vehicles over the period from 1 August 2005 to 28 November 2007 was 6,043.16 litres and that the rebated duty on the same was £2,845. 

MR JOHN M BARTON, WS
TRIBUNAL JUDGE

RELEASE DATE:  15 SEPTEMBER 2009