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14-8-2015 1:15 pm  #1


British "justice" - is there life in the old dog yet?

There have been numerous cases on this forum concerning individuals who have had goods seized in an arbitrary fashion and misled and sometimes downright lied to about their rights of appeal (or discouraged from doing so by the threat of exorbitant costs).The proverbial "man in the street" would surely see that there is something unjust about a process  which not only allows the authorities to swindle someone out of their  property, but also to charge them duty and penalties for the privilege.

Despite this, a succession of docile tribunal judges have endorsed the HMRC/UKBF regime  hook, line and sinker. They have taken the view that the unfortunate importer was, in effect,  a "smuggler" and have summarily struck out appeals made by unrepresented appellants against assessments and penalties. e.g.  

Law v Revenue & Customs [2015] UKFTT 1 (TC)
Daron Massey v Revenue & Customs [2014] UKFTT 1043 (TC)

All credit then, to tribunal judge John L. Walters QC for having the courage to swim against this noxious tide and refusing to strike out this  appeal.

Staniszewski v Revenue & Customs[2015] UKFTT 349 (TC)

Judge Walters cites 2 reasons for his decision which also concern matters that have previously been discussed on this forum.

1. The "Consumption point" which was discussed here

2. The "Proportionality point" which was discussed here.

The judge has also made similar decisions in Fleming v HMRC and Murray v HMRC

It is probably premature to say that this marks the beginning of the end for the pernicious duty assessments, but hopefully it may be the end of the beginning ...

The essence of the above case is:-=10pt25.           Shortly stated, the Consumption point was that the assessment in Williams was bad because it was not compliant with the spirit of the Excise Directive (Directive 2008/118/EC).  This was said to be because the Directive makes it clear that excise duty is a duty on consumption and should not be charged where goods have been destroyed or irrevocably lost. The suggested importance of consumption being the justification for excise duty to be levied was said not to have been reflected in the Excise Duty (Holding, Movement and Duty Point) Regulations 2010 under which the assessment in Williams, as in this case, was raised. It was submitted in Williams that HMRC cannot properly act contrary to the aims of the Directive by assessing for excise duty on goods which they have seized and condemned, or, alternatively, even if duty is chargeable, it ought to be remitted back in the circumstances, and so it was not reasonable to raise an assessment to excise duty in the first place.=10pt26.           The Proportionality point was that the assessment to excise duty was bad in that to raise it in addition to seizing the goods was a disproportionate response and a duplicated remedy for a perceived wrong (viz: the evasion of duty).

 

 

 

14-8-2015 5:42 pm  #2


Re: British "justice" - is there life in the old dog yet?

turbulentupstart wrote:

It is probably premature to say that this marks the beginning of the end for the pernicious duty assessments, but hopefully it may be the end of the beginning ...

Let's hope so TU and let's hope it doesn't go the way of 'Eastenders' where the case went all the way to Supreme Court and they then re-wrote the rule book!

I would say that 99.9% of people who forfeit their goods don't know they might get duty demand until they either get the demand or read about it on here.
 


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01-2-2017 8:07 pm  #3


Re: British "justice" - is there life in the old dog yet?

Seems like I spoke too soon … There have been a number of cases recently that have rejected the Article 37 point e.g. Fleming v Revenue and Customs and Neale v Revenue and Customs, the tribunals concerned preferring to follow the bizarre “reasoning” of the judge in Staniszewski (see also this post).

 However there has also been a couple of decisions which have taken a contrary view. In Hill v Revenue and Customs Judge Richard Thomas not only refused to strike out the appeal, but also indicated that he was minded to award costs against HMRC.

Judge Thomas cannot be accused of mincing his words, describing the Respondent's statement of case as “disgracefully slipshod” and that their “list of statutory authorities was more incompetently prepared that anything I have seen in my time on the Tribunal”.

 Judge Thomas's decision has been followed by Judge Alexsander in Adewale v Revenue and Customs  

So there we have it, some tribunal judges are summarily striking out appeals whereas others are refusing to do so and awarding costs to boot. There may well be subtle differences between these cases, which escape a layperson like myself. Or have tribunal hearings simply become a lottery?

Last edited by turbulentupstart (01-2-2017 8:08 pm)

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01-2-2017 9:38 pm  #4


Re: British "justice" - is there life in the old dog yet?

I believe we have 4 cases using Article 37 as an argument. Since the appeals I have not had any further update from those involved other than one which was refused at the review stage. One of the others goes back to June/July of last year.


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