E00869

	RESTORATION — Son took partner, children and mother to Calais and Belgium in father’s vehicle — purchased 72 kg of hand rolling tobacco and 2600 cigarettes — commercial purpose not in dispute — vehicle on hire purchase offered for restoration on payment of £7,777 — Appellant unwilling to pay — unaware of son’s activities — no — £7,777 proportional — yes — appeal dismissed

MANCHESTER TRIBUNAL CENTRE

 
 	
	BRIAN JOHN CARR	Appellant

	- and -

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	 David S Porter (Chairman)
						 Warren Snowden	

Sitting in public in North Shields on 16 February 2005

Carly Henly of counsel for the Appellant 

Robert Spragg of counsel, instructed by the Solicitor’s office for HM Customs and Excise, for the Respondents 

	© CROWN COPYRIGHT 2005

DECISION

1.	Brian John Carr (the Appellant) appeals the decision of the Commissioners contained in a letter dated 21 July 2004.  The decision was a refusal to restore his Vauxhall Sharan people carrier number X961 AHN (the vehicle) seized on 8 April 2004 unless the Appellant made a payment of £7,777.39.  At the time of the seizure the vehicle was being driven by the Appellant’s son, Paul Carr.  The Appellant states that the car is his and that he was unaware that his son had taken it abroad to buy tobacco.  The Respondents allege that the car was not a “third party car” and that the Appellant knew perfectly well that the car was being used by his son for such purposes
The Parties
2.	Mr Spragg of counsel appeared for the Commissioners and produced a bundle of documents for the Tribunal. Miss Henley of counsel appeared for the Appellant. 
Preliminary issue
3.	Mr Spragg and Miss Henley agreed for the purposes of this appeal that Paul Carr, the Appellant’s son, had been guilty of smuggling 72 kg of hand rolling tobacco and that the hand rolling tobacco and other goods purchased by him were properly forfeited. The question before us is whether the Appellant was blameworthy in allowing the vehicle to be used by his son for that purpose.
4.	We found the following facts.  The Appellant lives at 24 North View Meadowfield County Durham.  He is married with five adult children and ten grandchildren.  He purchased the vehicle on hire purchase in August 2003 and is required to repay £16,286.20 at the rate of £319.02 per month for 60 months.  He is employed as a hod-carrier and is paid £380 per week.  The vehicle appears to have been purchased for the general use of his extended family. Each of the sons used the vehicle from time to time although it was conceded that his son Paul, who has five children, tended to use it the most.  It is apparent from the evidence that the sons were individually insured to use the vehicle on a fully comprehensive basis. 
5.	As we understand it the vehicle was used by family members, individually and for family holidays.  The Appellant appears to have been unaware who was using it and for what purpose. He explained that all his children were adult and he did not think it was necessary for him to enquire as to its use.  On the occasion of the seizure his son Paul had taken his partner, two children and his mother with him.  He had been to the continent previously and taken his Mother on some of those occasions as well.  The Appellant alleged that he was unaware that his wife had been abroad with his son Paul or that Paul had brought back tobacco on previous occasions including this one.  We do not find it credible that the Appellant was unaware that his wife had gone abroad, when she would probably have been away for at least two days on more than one occasion.  She is likely to have told him about the trips and what had been purchased.
6.	The Appellant confirmed that he was unable to pay the sum of £7777.39, as he was still required to pay the amounts due under the hire purchase agreement.  These payments were causing him great financial hardship.  Mr Spragg suggested that the Appellant might ask his sons to help with the payment, but the Appellant thought that would be unreasonable.  The Appellant also said that the loss of the use of the vehicle meant that the family could only go away together if they took enough cars to carry the children.  When he had the use of the vehicle they could all travel together. .
7.	The Customs and Excise Management Act 1979 states that any vehicle which has been used for the carriage of the goods which have not paid duty and are forfeited is also liable to forfeiture, although the Commissioners may restore the vehicle on such terms as they think proper. The Commissioners consider that it is proportional to ask the Appellant to pay £7,777.39 representing the duty due. The vehicle is worth approximately £10,000.
Summing up
8.	Mr Spragg submitted that the decision not to restore the car except on the payment of £7,777.39 was reasonable.  The Commissioners had been sympathetic to the Appellant because of the use of the vehicle for his grandchildren.  The Appellant must have known that his son Paul used the vehicle to go abroad as the Appellant’s wife went with him.  Paul Carr had alleged at his interview that the vehicle was his and the vehicle registration document is in his name.  In the circumstances the Commissioners had acted reasonably in not restoring the vehicle except on the payment of £7,777.39
9.	Miss Henley submitted that the tribunal had had the opportunity to hear the Appellant’s evidence and the tribunal must conclude that he was blameless.  He has no control over his sons who are all adult and he had no reason to doubt that they would use the vehicle in a proper manner.  He had been punished enough as he was still paying the hire purchase payments and he had been without the vehicle for nearly twelve months with the consequential disruption to his family.  It was not proportional for the Commissioners to insist on a payment of £7,777.39. The Human Rights Act 1998 at Article 1 of the First Protocol provides that the Appellant is entitled to the peaceful enjoyment of his possessions.  The provision for the State to enforce such laws as it deems necessary to secure the payment of taxes does not help the Commissioners.  His son Paul owed the duty and the Appellant had been shown to be blameless.  In the circumstances the Commissioners had not acted reasonably nor proportionately and they should be asked to review their decision.

The Decision
10.	My colleague and I have considered the facts and are satisfied that the vehicle was a family vehicle and that the Reviewing Officer acted reasonably in refusing to restore it without the payment of £7,777.39. It is not credible that the Appellant was wholly unaware of the use to which the vehicle was being put. In his evidence he indicated that his is a very close family. The families go on holiday together; the grandchildren are round at his house most weekends and they all live near enough to each other to enable them to use the vehicle at their convenience. We therefore dismiss the appeal.  It is still open to the Appellant to recover the vehicle if he chooses to make the appropriate payment.  In fact we are surprised that the Appellant has not agreed to pay that amount and to ask his sons to make a considerable contribution.  In that way the hire purchase payments would cease.
11.	 As to the claim under Article 1 of the First Protocol we are satisfied that the Commissioners are entitled to recover the duty.  There is no good reason why all the families should not make a contribution to the duty in view of their shared use of the vehicle.
12.	The Respondents claimed no costs so we award none.

DAVID S PORTER
CHAIRMAN
Release Date: 6 April 2005

MAN/04/8091

££Carr v Customs and Excise [2004] UKVAT(Excise) E00869 (06 April 2005)