E01107

EXCISE DUTY- seizure of vehicle – refusal of restoration – whether refusal reasonable in the circumstances? Yes – Appeal dismissed

LONDON TRIBUNAL CENTRE						

	REGINALD CHAMBERLAIN & GINA BAKER	Appellant

	- and -

	THE COMMISSIONERS FOR HER MAJESTY’S
	REVENUE AND CUSTOMS	Respondents

		Tribunal: 	Adrian Shipwright
				Alex McLoughlin

Sitting in public in London on 28 February 2008

Reginald Chamberlain for the Appellant

David Manknell, Counsel, instructed by the Solicitor for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2008
DECISION

1.	This is an appeal against the Respondent's ("HMRC") decision to refuse to offer restoration of a Peugeot 406 car with registration number MM 02 0HB (“the Car") contained in a letter dated 8 September 2006.  It is not concerned with any other matters.
2.	The parties accepted before us that Mr Chamberlain had no interest as owner or otherwise in the Car.  Accordingly, the appeal is strictly Mrs Baker's appeal against the non-restoration.  Mr Chamberlain appeared as her representative.  She was not present.
3.	The Car was stopped at the UK control zone in Coquelles, France.  Mr Chamberlain was the driver of the Car and Mrs Baker was in the front passenger seat.
4.	When asked by HMRC officers Mr Chamberlain confirmed they had been to Belgium.  He said the car belonged to him.  The registered keeper was Mrs Baker and her sister.  However, the finance agreement was solely in Mrs Baker's name.  We find as a fact that she was the sole owner of the car.  The car had made 19 trips to the continent in the last 18 months.
5.	According to the Officer's notebook, which Mr Chamberlain signed to confirm its accuracy, the following exchanges took place.
"Q	How many cigarettes are in the car...
A	8 [seemingly cartons]
Q	Any tobacco?
A	No".
6.	The Car was then driven into the garage and the Car boot was opened which revealed some bags.  Mr Chamberlain said "there is some tobacco... do you want the truth... there is five boxes".
7.	The following entries signed by Mr Chamberlain (as he agreed) appeared later in the Officer's notebook.
"Q	Did you knowingly make a false declaration to me regarding the tobacco
A	Yes..." 
8.	There was some 31.5 kg of hand rolling tobacco in the boot of the Car.  There were no pouches on Mr Chamberlain.  The tobacco had cost about £1,700.  It was paid for in cash not by credit card.  Mr Chamberlain said this was the proceeds of the sale of a caravan.
9.	Mr Chamberlain said he got about 150 rollup cigarettes from a package.  He consumed about 3.5 pouches per week.  This would give Mr Chamberlain about 3 1/2 years worth of tobacco.
10.	Mrs Baker told the HMRC officer that they had bought a property in Spain and that she and Mr Chamberlain were going to live in Spain.  It is understood that tobacco is even cheaper in Spain.
11.	The HMRC officer was satisfied that the 31.5 kg of hand rolling tobacco were held for a commercial purpose and were liable to forfeiture and seized.  The Car as the vehicle used for the carriage of goods liable to forfeiture was also seized.
12.	Condemnation proceedings in respect of the Car and seemingly the goods were started but abandoned.
13.	The Appellant's Notice of Appeal said "... vehicle was seized by C & E in France.  We have been stopped before and searched we have never had tobacco products in vehicle at those times.  We were not given the chance to pay the duty on the products it is our first offence.  We have sent an appeal against human rights to the EU petition number 497/2000".
14.	At the hearing Mr Chamberlain essentially argued that:
(1)	there was exceptional hardship here because one of the grandchildren had cerebral palsy and the other needed a kidney transplant; and
(2)	the seizure of the Car was disproportionate.  He read part of the letter to us concerning this from the European Parliament Petitions Section.		 
15.	Mr Manknell for HMRC argued, in essence, that the decision was "Wednesbury" reasonable.  It was not a decision that the "... person making it could not reasonably have arrived at".  Accordingly, section 16 (4) FA 1994 was not engaged and there was consequently no power for the Tribunal to order a further review or that the decisions ceased to have effect or to give further directions in accordance with the subsection.
16.	Thee sole question for us is whether the decision not to restore the Car was "a decision that the person making it could not reasonably have arrived at".
17.	We do not consider that the decision was one that could not have been reasonably arrived at.  In reaching this conclusion we have considered all the circumstances.  However the following matters particularly influenced us.
(1)	The amount of tobacco ie 31.5 kg.
(2)	The time it would take to consume.
(3)	Payments being made in cash.
(4)	The number of trip abroad made by the vehicle.
(5)	The imminent move to Spain.
18.	No evidence was led as to exceptional hardship.  Whilst we are sympathetic to the apparent plight of the grandchildren we do not see in the particular circumstances of the case that the seizure of the grandparent's car gave rise to exceptional hardship even if there were no other vehicle available to Mrs Baker.  This was especially so when the grandparents were moving to Spain.  
19.	We do not consider taking all the circumstances of the case into account that there was a lack of proportionality in the decision (see Lindsay).
20.	We consider, as contended on behalf of HMRC, that the decision struck a fair balance between ensuring compliance with the UK revenue law and protecting the Revenue on the one hand, and the right to enjoyment of property under Article 1 of Protocol 1 of the European Convention on Human Rights on the other.
21.	Accordingly, having found that the decision fell within the range of reasonable decisions that could have arrived at the appeal is dismissed.  We make no order as to costs.

ADRIAN SHIPWRIGHT
                                                        CHAIRMAN
          RELEASE DATE: 15 April 2008

LON/2006/8091