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24-2-2017 12:54 pm  #1


Tribunal hearing re Article 37.

The first of our cases re Article 37 is due before the Tribunal.

HMRC have applied for the case to be struck out or held over pending the outcome of a UTT appeal. A response to this has been prepared and I will be surprised if the strike out is not dismissed.


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24-2-2017 6:35 pm  #2


Re: Tribunal hearing re Article 37.

The Appellant should ensure that the judge is aware of the following recent cases:

Hill v Revenue and Customs (EXCISE DUTY APPEALS : Other) [2017] UKFTT 18 (TC)
Adewale v Revenue and Customs (PROCEDURE : Other) [2017] UKFTT 103 (TC)
and
Lewis v Revenue & Customs [2015] UKFTT 640 (TC)

If the appeal is struck out he can apply for permission to appeal to the UT.
 

Last edited by turbulentupstart (24-2-2017 6:39 pm)

 

24-2-2017 7:48 pm  #3


Re: Tribunal hearing re Article 37.

TU

Thanks for your help. We have referenced a similar case but not actually those. 

Strike out application is under Rule 8(3)c - discretionary.

I cannot go into more detail at present for fear of identifying our member to HMRC.


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26-2-2017 3:47 pm  #4


Re: Tribunal hearing re Article 37.

Look forward to the result.

TU, where do you find the cases, is there an online directory?

JMK

 

26-2-2017 11:07 pm  #5


Re: Tribunal hearing re Article 37.

Johny_MK wrote:

Look forward to the result.

TU, where do you find the cases, is there an online directory?

JMK

http://financeandtax.decisions.tribunals.gov.uk/Aspx/default.aspx

There are probably others.
 


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27-2-2017 6:42 pm  #6


Re: Tribunal hearing re Article 37.

Thanks Eezy.

JMK

 

03-3-2017 9:23 pm  #7


Re: Tribunal hearing re Article 37.

FTT decisions can also  be found in html format at http://www.bailii.org/uk/cases/UKFTT/TC/

Prior to 2009, VAT and Duties (Excise) tribunal decisions athttp://www.bailii.org/uk/cases/UKVAT/Excise/

UT decisions (PDF only) at http://www.bailii.org/uk/cases/UKUT/TCC/

UT Hearings and Register at https://www.gov.uk/government/publications/upper-tribunal-tax-and-chancery-register-of-cases/upper-tribunal-tax-and-chancery-hearings-and-register-web-table

if all that is not enough to be going on with, try this for size (all 140 pages of it!!):

http://financeandtax.decisions.tribunals.gov.uk//judgmentfiles/j9652/TC05678.pdf
or
http://www.bailii.org/uk/cases/UKFTT/TC/2017/TC05659.html

 

Last edited by turbulentupstart (03-3-2017 9:24 pm)

 

04-3-2017 7:26 pm  #8


Re: Tribunal hearing re Article 37.

Thanks TU.

Will have a look.

JMK

 

11-5-2017 2:23 pm  #9


Re: Tribunal hearing re Article 37.

As per post #1, the strike-out was refused by Judge Brooks.

It would appear that all cases relating to Article 37 are being stayed pending the outcome of 'Jacobsen' at the UTT. I have no idea if there is a date listed for this. If that case is lost then we can expect all cases relating to Article 37 to be struck out. If however Jacobsen wins then the tribunals will be busy.

Upon further investigation, HMRC v Jacobsen is not listed for hearing until 23/04/2018 unless it is a typo, which I doubt in court listings.

Last edited by eezyrider (11-5-2017 7:46 pm)


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21-9-2017 9:17 am  #10


Re: Tribunal hearing re Article 37.

Another of our Article 37 cases going to tribunal has had a ''strike out'' application by HMRC refused! 


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27-9-2017 7:49 pm  #11


Re: Tribunal hearing re Article 37.

It seems that the Jacobson appeal has been brought forward to 18 December 2017.

Meanwhile spare a thought for poor oldJeffrey Williams whose appeal was, I believe, the first in which  the Article 37 issue was raised. In March 2013 he was assessed for duty in the sum of £143,557 and a further penalty of £55,269.44. Although the UT listed HMRC's  appeal on 20/11/15 a hearing date has still not been set.

 

27-9-2017 9:31 pm  #12


Re: Tribunal hearing re Article 37.

Thanks for the update TU.

hmm....18th Dec, I'm sure they do it to ruin people's Christmas. 


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27-9-2017 9:33 pm  #13


Re: Tribunal hearing re Article 37.

TU

Point of interest - do you have any comments on where or when the Excise Duty point should be in your opinion?


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30-9-2017 7:59 pm  #14


Re: Tribunal hearing re Article 37.

Crikey eezy I wish you had asked me an easier question such as my comments on the Special Theory of Relativity or something ...

Well it appears to be a "when" as in  time rather than a "where" as in place. According to Regulation 13 of Excise Goods (Holding and Duty Point Regulations 2010:

13.—(1) Where excise goods already released for consumption in another Member State are held for a commercial purpose in the United Kingdom in order to be delivered or used in the United Kingdom, the excise duty point is the time when those goods are first so held. 

and the time of payment of the duty (regulation 20)

20.—(1) Subject to—(a)  the provisions of these Regulations and any other regulations made under the customs and excise Acts about accounting and payment; 
and according to

duty must be paid at or before an excise duty point.

 
Exactly  when the duty point arises was considered in great detail in Jacobson at paragraphs 50-60.

There are a number of possibilities in a flight: the time when the aircraft first entered UK airspace, the time it touched down at the airport, the time the person penalised picked up their hand luggage on the plane, the time they stepped off the plane with that luggage, and (in the case of the goods having been in hold baggage) the time the person picks the luggage containing the goods off the carousel. 

The tribunal concluded that it was arguable that, by the time the appellant reached the green channel, it was already too late to pay the duty and so she should not be liable to a penalty.
 

Last edited by turbulentupstart (30-9-2017 8:00 pm)

 

30-9-2017 8:32 pm  #15


Re: Tribunal hearing re Article 37.

The reason I ask is because I am sure I saw a tribunal appeal dismissed re Article 37 because the judge ruled that the Excise Duty point was at the point of disembarkation i.e. as soon as the traveller steps onto the ground. Once past the ED point the goods cannot  then be deemed to be destroyed.

I have been enclosing (something like) the following with our appeals:-

The Excise Duty point should be at the point where the passenger first makes contact with customs. It cannot conceivably be at the point of disembarkation otherwise a passenger having goods to declare would be in contravention of the regulations from that point until first contact with customs to declare the goods.


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