[2011] UKFTT 601 (TC)
TC01444
Appeal number: TC/10/04305
Excise
Duties – Tobacco – whether imported for commercial purpose – condemnation
proceedings in Sheriff Court – jurisdiction of Tribunal – “strike-out”
provisions in terms of Rule 8 of Tribunal Procedure (First-tier Tribunal) (Tax
Chamber) Rules 2009/273.
FIRST-TIER TRIBUNAL
TAX
JAMES
WILLIAMSON AND BERNICE WILLIAMSON Appellants
-
and -
UK BORDER AGENCY Respondents
TRIBUNAL JUDGE: Mr
Kenneth Mure, QC
Sitting in public at George
House, 126 George Street, Edinburgh on Tuesday 13 September 2011
No appearance for the
Appellants
K Clancy, Solicitor, Shepherd
& Wedderburn WS for the Respondents
© CROWN COPYRIGHT
2011
DECISION
1. This is an
application by the UK Border Agency to strike out the Appeal of Mr and Mrs
Williamson against the refusal of the Agency to restore a quantity of
cigarettes and tobacco which were seized from them at Edinburgh Airport on 19 November 2009 on their return from Spain.
2. Mr Clancy
appeared for the Agency. The taxpayers did not, however, attend although they
were aware of the date and time of the hearing. Shortly after 10.30 am, and
after the Tribunal Clerks had attempted to contact them unsuccessfully, the
Tribunal was persuaded that it was in the interests of justice to proceed to
hear the Appeal in the Williamson’s absence.
3. While
persons entering the UK from another member state of the EU may import an
unlimited quantity of cigarettes and tobacco, it must be for personal use. If
it is imported for a commercial purpose, however, most obviously for
resale, then it is liable to be confiscated.
4. Mr and Mrs
Williamson caused condemnation proceedings to be raised in Edinburgh Sheriff
Court in relation to this matter. Accordingly the appeal to this Tribunal
was continued until the outcome of these proceedings. The decision of the
Sheriff was that decree of condemnation of all of the cigarettes and tobacco
seized should be pronounced and that on the basis that they had been imported
by the Williamsons for commercial purposes. The Sheriff did not find the
explanations of Mr and Mrs Williamson to be credible. The decision of the
Sheriff is included as item 5 in the Bundle of Authorities.
5. Mr Clancy
referred me to the decisions of the Court of Appeal in Gascoyne v HMRC
[2005] Ch 215 and of the Edinburgh Tribunal in Muirhead (28 January
2011) in support of the proposition that once condemnation has been determined
by the Magistrates Court (or Sheriff in Scotland) the matter is concluded. He
submitted, accordingly, that this Tribunal could not reconsider issues, here
essentially of parties’ credibility which had been determined in the Sheriff Court.
6. Mr Clancy
referred me to the terms of Rule 8 of the Tribunal Procedure (First-tier Tribunal)
(Tax Chamber) Rules 2009. This provides inter alia –
(2) the Tribunal must strike
out the whole or a part of the proceedings if the Tribunal –
(a)
does not have jurisdiction in relation to the proceedings or that part
of them; and
(b)
does not exercise its power under Rule 5(3)(k)(i) (transfer to another court
or tribunal) in relation to the proceedings or that part of them.
(3) The Tribunal may strike
out the whole or a part of the proceedings if –
(a)
…
(b)
…
(c)
The Tribunal considers there is no reasonable prospect of the
appellant’s case, or part of it, succeeding.
7. I observe
that in the Notice of Application it is only the second of these provisions
which is referred to. I observe also that the wording of each of these
provisions differs significantly. In the former the Tribunal must strike
out, whereas in the latter it may. In any event Mr Clancy submitted
that the Williamsons’ appeal should be struck out on the basis that the issue
of commercial or personal use had already been dealt with exhaustively by the
Sheriff.
8. I consider
Mr Clancy’s argument well-founded. The only issue identified in the Appeal is
whether the import was for commercial or personal purposes. That has been
determined by the Sheriff and her decision on that aspect cannot be reviewed by
this Tribunal. Accordingly this Appeal falls to be struck out in terms of Rule
8. Both sub-rules (2) and (3)(c) seem apt. In terms of the former I have no
discretion. However, in any event in terms of the latter provision it is in my
view the reasonable and appropriate course.
9. This
document contains full findings of fact and reasons for the decision. Any
party dissatisfied with this decision has a right to apply for permission to
appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier
Tribunal) (Tax Chamber) Rules 2009. The application must be received by this
Tribunal not later than 56 days after this decision is sent to that party. The
parties are referred to “Guidance to accompany a Decision from the First-tier
Tribunal (Tax Chamber)” which accompanies and forms part of this decision
notice.
MR KENNETH MURE, QC
TRIBUNAL JUDGE
RELEASE DATE: 14 SEPTEMBER 2011
