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	United Kingdom VAT & Duties Tribunals (Excise) Decisions
You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> United Kingdom VAT & Duties Tribunals (Excise) Decisions >> Sidorowicz v Revenue & Customs [2007] UKVAT(Excise) E01034 (01 March 2007) URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2007/E01034.html Cite as: [2007] UKVAT(Excise) E1034, [2007] UKVAT(Excise) E01034

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E01034

EXCISE DUTY – appellant's vehicle used for smuggling tobacco – used by appellant's husband – was the respondents' decision to refuse restoration reasonable? – yes – appeal dismissed.

MANCHESTER TRIBUNAL CENTRE

JOLANTA SIDOROWICZ

Appellant

and –

HER MAJESTY'S REVENUE AND CUSTOMS

Respondents

Tribunal: Richard Barlow (Chairman)

Mrs Gilian Pratt JP

Sitting in public in Manchester on 3 January 2007.

The Appellant in person.

For the Respondents James Puzey of counsel instructed by the acting general counsel and solicitor to the respondents.

© CROWN COPYRIGHT 2007


 


DECISION
1. This appeal is against a review decision dated 21 February 2006 by which the respondents upheld their earlier decision not to restore to the appellant a Vauxhall Zafira motor vehicle registered number FJ02 AVD. The vehicle had been seized at Dover on 17 November 2005 under sections 139 and 141 of the Customs and Excise Management Act 1979 as a vehicle which had been used for the carriage of things liable to forfeiture.
2. The things liable to forfeiture were 30Kg of hand rolling tobacco, 6 litres of lager, 14.6 litres of spirits and 31.5 litres of wine. All those items were imported on 17 November 2005 and it is not disputed that, except for 2Kg of the tobacco, the items were owned by Mr Boguslaw Sidorowicz, the appellant's husband. The remaining 2Kg of tobacco were owned by Mr Tomasz Kiska, an employee of Mr Sidorowicz who had travelled with him.
3. The 2Kg of tobacco and the alcoholic drinks were seized under section 141 of the Customs and Excise Management Act 1979 as being "mixed, packed or found with" the bulk of the tobacco which was the item that gave rise to the seizure of the smaller items and the vehicle. How far the alcoholic drinks and the smaller quantity of tobacco might have been argued not to have been mixed or packed or found with the other tobacco is not an issue before the Tribunal because the legality of the seizure is not in issue in these proceedings. An earlier application to the Magistrates Court, which may have been in respect of the vehicle only, has been withdrawn and the legality of the seizure is no longer in issue between the parties.
4. Mr Sidorowicz admitted when questioned at Dover that he had bought 560 pouches of the tobacco and that he did not smoke. He admitted that he had bought it at £2.85 a pouch and would have sold it to members of the Polish community at £3.50. He thereby admitted that the purchase was for a commercial purpose. He also admitted having made four other similar trips in 2005 for the same purpose. He therefore admitted being a regular smuggler for profit.
5. The appeal to the Tribunal relates only to the refusal to restore the vehicle. The respondents have the power to restore the vehicle under section 152 of the Customs and Excise Management Act 1979 and, if they had decided to do so, they could have imposed conditions. They refused to do that and, as that refusal is in respect of an "ancillary matter" within the meaning of section 16(8) of the Finance Act 1994, the Tribunal's jurisdiction is confined, by section 16(5) of that Act, to considering whether the Commissioners could reasonably have come to the decision not to restore the vehicle. We have to decide that issue according to the evidence and if we are satisfied that the Commissioners could not reasonably have decided to refuse to restore the vehicle the relevant power is for us to direct a further review. If we do that we can direct that the review should take into account our findings of fact and our holdings about the reasonableness of the decision.
6. The basic facts are not in dispute and Mrs Sidorowicz did not call her husband to give evidence. The marriage was under strain before the vehicle was seized but they were still living together at that time and after the seizure Mr and Mrs Sidorowicz have lived apart, though they still have contact with each other for the sake of their daughter, and it seems to some extent, in respect of a travel business that Mrs Sidorowicz runs (Mr Sidorowicz now runs a restaurant).
7. Mr Sidorowicz travelled to Belgium on 17 November 2005 on a day trip via Dover and Calais and there bought the goods referred to above. Mrs Sidorowicz was out of the country at the time having gone to Poland (their homeland) in connection with the travel business.
8. She claimed in evidence that, before she left, Mr Sidorowicz had asked if he could use the vehicle to go to a trade fair in London and according to Mrs Sidorowicz she was unaware that he intended to go to Belgium or that he intended to buy excise goods. On her return she naturally asked about the vehicle and he told her it had broken down in London. It was only some time later that she discovered the truth when she saw correspondence from HMRC referring to the seizure. In the meantime Mr Sidorowicz had been intercepting the mail. We find that the situation was as stated in those respects.
9. The ownership of the car was to some extent disputed by the respondents who contend that Mr Sidorowicz had a proprietary interest in it as well as Mrs Sidorowicz. We find it unnecessary to make a firm finding about that because, although if Mr Sidorowicz was a part owner that would be relevant to the reasonableness of the refusal to restore, we are able to reach a conclusion without making that finding.
10. Mrs Sidorowicz had owned a Ford Mondeo which her parents had given her at what was, for them, considerable expense. When she sold the Mondeo there was about £2,000 left and she put that towards the purchase of the Zafira with the balance coming from a loan. She therefore regarded the Zafira as partly a present from her parents and it was obvious from the way she gave evidence about this that she felt considerable emotion about the loss of what remained of the gift.
11. We now turn to what we regard as the most relevant evidence. These facts are not in dispute as they amount to admissions made quite frankly by the appellant when giving evidence.
12. She said that she had travelled to Poland with her husband in a car in 2002 or 2003 when they stopped in Belgium on the way back and he bought an excessive amount of tobacco ("over the limit" were her exact words) while she was asleep in the car which she was furious about because she "did not like the feeling" as they were coming back through UK Customs. Mr Puzey put it to her that there had been an occasion when she and Mr Sidorowicz had travelled in a coach and he had been found to have excessive amounts of tobacco which he had admitted were for sale. She said she did not know about that or an occasion when he had been stopped at East Midlands Airport. It seems clear that the occasion when Mrs Sidorowicz was in the car was not the same occasion as the other two and that they had been able to pass through Customs unchallenged on that occasion. Whether she knew about those other two incidents or not Mrs Sidorowicz therefore knew that her husband had smuggled tobacco in a family owned vehicle on that occasion.
13. Mrs Sidorowicz also said that her husband sometimes went abroad without telling her. The following is a passage from her evidence while being cross examined:

Did your husband bring in tobacco on day trips?

I don't know but from time to time I did see tobacco.

You must have been suspicious after 2002?

Believe it or not the less I know the happier I am.

Did it not worry you that he was bringing in tobacco when he did not smoke?

Yes it did I told him so many times.

I told him he was risking …. whatever …. it is pointless.

Once I heard on the News the Customs were stopping people. I told him to be careful and what Customs were doing now.

What did you think he was doing when he borrowed the car?

I don't know.

I didn't suspect on this occasion because he did not tell me he was going abroad.

Why did he need to make so many trips? Didn't it worry you what he was doing?

Every time it was worrying me. I know I am stupid.

14. It is abundantly plain from the above evidence that Mrs Sidorowicz knew very well that her husband bought tobacco in excess of the permitted amounts and sold it for a profit. It is abundantly plain that he used her car to do so on at least some occasions.
15. Her case for contending that it is unreasonable for the respondents to refuse to restore the vehicle is therefore limited to three points. First, she had a sentimental attachment to the vehicle because it was partly paid for indirectly by her parents. Secondly, she had claimed in correspondence that she needed the vehicle to transport her daughter to school though she gave no evidence that this had proved impossible, or even difficult, after the seizure and the inference is that she was able to use another vehicle. Thirdly, on this particular occasion, she had not known that her husband would go abroad in the vehicle.
16. The Commissioners' policy about restoration is what they term "robust" because of the damage tobacco smuggling does to the UK economy and in the case of innocent third party owners they only restore vehicles if the owner has taken reasonable steps to prevent the borrower from using the vehicle for smuggling.
17. We regard the appellant's sentimental attachment to the vehicle as irrelevant. The inconvenience of losing the car has not been demonstrated even to have occurred let alone to have been in excess of what is inevitable in such cases.
18. The appellant comes nowhere near the description of a person who has taken reasonable steps to prevent her vehicle from being used for smuggling. She knew very well that her husband was a regular smuggler and that he had used a family vehicle for this purpose on more than one occasion. She was with him on one such occasion at least and had evidently turned a blind eye to other occasions as her reply about being happier to know as little as possible shows. She had repeatedly warned him to be careful though she did not claim to have told him to desist.
19. Far from having acted reasonably to prevent her car from being used for smuggling Mrs Sidorowicz acted most recklessly at least and we are of the opinion that she cannot really even describe herself as an innocent party. We have no hesitation in concluding that the Commissioners acted reasonably and proportionately in refusing to restore the vehicle and the appeal is dismissed. The Commissioners did not seek an award of costs and we make no order.
CHAIRMAN RELEASED: 1 March 2007

MAN/06/8022