E01022

Excise Duty – vehicle – seizure challenged by owner – no steps taken to initiate condemnation proceedings by HMRC – rights in vehicle transferred to Appellant – restoration offered to Appellant at a fee – whether appeal against fee competent in absence of resolution of challenge – Adjourned so that proceedings can be taken.

EDINBURGH TRIBUNAL CENTRE

	ARTHUR THOMSON	Appellant(s)

	- and -

	THE COMMISSIONERS FOR 
	HER MAJESTY’S REVENUE & CUSTOMS	       Respondents

			Tribunal:	 T GORDON COUTTS, QC (Chairman)
                                                       Ian M P Condie, CA., (Member)
                                                       W Ruthven Gemmell, WS

Sitting in Edinburgh on 21st February 2007.

for the Appellant(s)		HEARD ON PAPERS ONLY

for the Respondents		A Scott, Shepherd and Wedderburn, WS

CROWN COPYRIGHT 2007.
DECISION

	Mr Thomson intimated that he wished his appeal dealt with in his absence.   It arose from the seizure of a vehicle, then owned by a Mrs Loughlin into which it was alleged Mr.Thomson had put non-duty paid fuel, probably vegetable oil.   Much correspondence ensued from Mr Thomson but, critically, on 11 May 2007 Mrs Loughlin completed the Commissioners pro forma appeal letter indicating that she, the owner, wished to appeal against Customs legal right to seize the vehicle and which continued “please commence legal proceedings so that I can challenge why the things were seized by Customs”.     

	Her reasons were personal and did not correspond with the grounds in the Notice of Appeal lodged by Mr Thomson the 13 September 2007.   That Notice of Appeal indicated an appeal against the Review Decision of 31/8/06 and that the approximate sum of money in dispute was £480.   The grounds of appeal were “the fuel in the vehicle was duty-paid at the relevant rate for vegetable oil fuel”.    The so-called Review Decision was a default decision, no timeous review having taken place, but concerned an offer of restoration of the vehicle for the sum of £480.

	At the commencement of the hearing the Solicitor for the Respondents argued that Mr Thomson was not able to challenge the lawfulness of the seizure of the vehicle.    That he, correctly, continued was not a matter over which the Tribunal has jurisdiction.

	It was asserted that a letter from Mrs Loughlin dated 20 August 2006 and stating thus;
	“THIS IS TO CONFIRM THAT I,
	ELIZABETH LOUGHLIN OFF (SIC) 17 WITCHKNOWE ROAD KILMARNOCK KA1 4LN, HEREBY TRANSFER OWNERSHIP OF MY VEHICLE R951 GHS NAMELY JEEP GRAND CHEROKEE TO MR ARTHUR THOMSON OFF DAMHEAD BRIDGE FARM TARBOLTON ROAD SYMINGTON AYRSHIRE 	KA1 5PJ AND AS SUCH NO LONGER HAVE ANY INTEREST IN THE SAID VEHICLE
	YOURS SINCERELY E LOUGHLIN MRS.
	DATED THE 20/08/06”
was a withdrawal of the challenge to seizure.

	The Tribunal after discussion was not prepared to accept that.  It seemed to them that the letter could not be construed as an abandonment of the challenge to seizure.    The mere fact that Mrs Loughlin had sold or conveyed the vehicle to Mr Thomson is not sufficient evidence that she had abandoned the challenge.  On the contrary it is more likely that Mr Thomson inherited that challenge along with the vehicle.    There is no reason why a seized vehicle could not  be sold subject to the restoration fee demanded being deducted from the price.    We do not know whether that took place or not.

	Mr Thomson’s correspondence in the file produced certainly indicates that he regarded himself as challenging the validity of the seizure on the facts.
	If the vehicle was to be found to have been  incorrectly seized then no question of a restoration fee could arise and any sum paid by Mr Thomson to the Commissioners to recover the vehicle would require to be refunded.

	It is in these circumstances that we adjourn the appeal in order that condemnation proceedings can take place, failing which it would seem likely that the Commissioners are not entitled to retain Mr Thomson’s money.   It may be, however, that there are other factors which would indicate that there is currently an issue for the Tribunal to decide.

	The Commissioners therefore should, as they promised to do, forthwith institute condemnation proceedings in the appropriate Court.    The Tribunal accordingly directs that the Tribunal be informed of the progress of all matters by 30 April 2007.

T GORDON COUTTS, QC
CHAIRMAN
DATED THIS 28th DAY OF FEBRUARY 2007.
EDN/06/8018

DECISION

(INSERT NAME OF CHAIRMAN)

CHAIRMAN

RELEASE:  28  February  2007

EDN/