EO00936
Excise Duty – Appeal against Civil Penalty – Lack of prosecution – Decision under Rule. 26 VAT Tribunal Rules 1986 - Direction to Appellant to serve particulars of grounds of appeal
LONDON TRIBUNAL CENTRE
SHANE MCMAHON Appellant
THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS Respondents
Tribunal: MR I HUDDLESTON (Chairman)
Sitting in public in Belfast on 19 October 2005
The Appellant not appearing
Bernard Haley of the Solicitor's Office of HMRC for the Respondents
© CROWN COPYRIGHT 2005
DECISION
- Shane McMahon, the Appellant, appeals against a civil penalty imposed on him relating to excise duty.
- The assessment was made on 26th October 2004. The amount of the penalty is £250.00. The reasons for the imposition of the penalty are contained in a Review letter from the Appeals and Reconsiderations Team, Scotland dated 15th April 2005. This states that the Review Officer reviewed the information available to her including details of figures submitted on Mr McMahon's RDCO monthly return forms, visit reports and correspondence. She explained that the reason for issuing the penalty had been Mr McMahon's continuing failure to submit accurate returns. She then set out (in that review letter) the following details:-
| |
FIGURES ON SHEETS |
FIGURES ON RETURNS |
| October |
2105 litres – 87 sales |
2324 litres – 83 sales |
| November |
1900 litres – 72 sales |
3052.70 litres – 89 sales |
| December |
1700 litres – 68 sales |
2666.26 litres – 82 sales |
| February |
1250 litres – 56 sales |
1936.33 litres – 62 sales |
- The letter from the Review Officer stated that when visiting on 8th October 2004 the visiting Officer had noted from the till sheets for July and August of that year the daily sales as shown above and had been advised that the till selling price for MGO had been 34p "for a while". That, observed the Review Officer, would have meant sales of 1,263.24 litres for July and 1,211.65 litres for August. The Review Officer's letter goes on to record that Mr McMahon advised the visiting Officer in a telephone call of 29th October 2004, that in fact in July he had sold MGO at 32p per litre and in August at 33.9p per litre. This, the letter says, would have meant that for July Mr McMahon had sold 1,867.39 litres and in August 1,215.22 litres. Neither of the two sets of figures referred to above match the figure submitted on Mr McMahon's return. Further visits apparently took place in May and June and these had been followed up in letters that explained the record keeping requirements. Those requirements had previously been explained to Mr McMahon in August 2003. On 8th October 2004 the visiting Officer again paid Mr McMahon a visit and still found discrepancies between the figures in his records and those actually submitted on the returns. On 26th October 2004 the visiting Officer issued the penalty.
- Mr McMahon responded on 24th November 2004. In that letter he pointed out that there appeared to be some misunderstanding with regard to the RDC records and that after the visit of 8th October 2004, he had been informed that his records of sales for red diesel did not match the figures on his return form. Mr McMahon went on to say that having checked his records and returns he failed to understand how this conclusion had been reached.
- The ground of appeal set out in the Appeal Notice signed on 10th February 2005, read as follows:-
"As stated in my letter of 24th November 2004 I can't understand how the Custom Officer calculated that my returns were wrong. Also I have been informed my appeal to the Review Officer failed because it was late."
- When the appeal was called on for hearing on the 18th October 2005 there was no attendance by Mr McMahon. The Tribunal's file shows that he had been notified by the Tribunal Centre of the hearing on 19th May. I decided to proceed with the hearing in his absence pursuant to Rule 26 of the Value Added Tax Tribunal Rules 1986. For Mr McMahon's benefit this provides that, when a hearing is conducted in a party's absence, the Tribunal may proceed. It is, however, provided by Rule 26(3) that the Tribunal has power to set aside any decision given in the absence of a party on such terms as it thinks fit. The absent party must make an application in writing within 14 days from the release of the decision and, when the application comes on for hearing, he must attend the hearing. That course remains open to Mr McMahon.
- There was no explanation of any sort in either the correspondence, the appeal notice or the evidence before this Tribunal as to why Mr McMahon's records should be preferred to those adopted by the visiting Officer and the Review Officer for the purposes of the present penalty proceedings. I therefore feel bound to accept the reasons given in the Review Officer's letter. The reasons given in the Grounds of Appeal do nothing to displace the penalty notice and the basis on which it was determined.
For those reasons I dismiss the appeal.
I HUDDLESTON
CHAIRMAN
RELEASED: 30 December 2005
LON/2005/190
