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ACCESS group for victims of HM Revenue and Customs – What to do if your case comes to Court or Tribunal.

What to do if you have goods and/or car seized by HM Revenue and Customs

The trauma of finding out Customs Officers can seize goods and car on the basis of an assumption is bad enough. Sadly what follows – the appeals process – is even more distressing.

As part of this Governments strategy of "frustrating" the flow of tobacco, the appeals procedure has been set up in a way which makes it virtually impossible to win.

For example, the first thing you should do is ask for a review. But, this is carried out by the Officer who made the seizure (we ask – what is the point of doing this if it is not independent?).

If you go to Magistrates Court (Customs theoretically cannot destroy the goods or car without the approval of the Magistrates Court – but they do anyway).

Don't be intimidated. Appeal – it clogs the system up.

Seizure is the act of bringing under Customs control any goods that Customs and excise consider are liable to forfeiture under the Customs and Excise Acts. Vehicles, vessels, containers, and other such things used for the carriage or concealment of the seized goods, and any other goods mixed, packed or found with the seized goods may also be seized. They will either seize goods in your presence (or that of your representative) or arrange for a notice of seizure to be issued to you.

Basically, begin by making a request for restoration to HMRC, this being the start of an appeal under sections 14-16 Finance Act 1994.

Your letter will need to include a full description of the goods seized, location, date, time of seizure, together with receipts for goods, other documentation (bank statements etc.), reasons you were unable to stop for an interview (if applicable), illness, family bereavement, stressed out, tired, transport waiting. etc.

An explanation of the appeal procedure is shown on Notice 12A. customs.hmrc.gov.uk

All complaints now go to UKBA Complaints at Dover, there is no access to any Adjudicator if you don't get satisfaction. Your complaint is reviewed by UKBA Complaints at Dover. After that you can appeal / make a complaint to the Ombudsman.

February 2012 – Fightback! Our friends at Smoking Hot continue with their great work. Why not print these leaflets and give them to fellow shoppers / leave them on the ferry etc?. nothing-2-declare.blogspot.com

We found it easier to download the pdf (opens up after download) – Back / Front.

HELP! – if you have any comments or tips that will help advance the cause of channel shopping, please contact us

The information contained within this web site is intended to act as a general guide only, and does not form any offer or legal contract, whether actual or implied.

Customs and VAT matters are complex, and you should seek practical advice and assistance from a professional source rather than rely on the contents of this web site.

The Appeals Procedure

Once your goods have been seized you may consider the following options:

1) Argue that the seizure was not correct and appeal against it. In this case, you must follow the procedure set out below.

2) Accept that the seizure was correct and do nothing. In this case, the seized goods will eventually become condemned as forfeit and will be disposed of, usually by destroying them.

3) Accept that the seizure was correct but ask for the goods to be returned to you. In this case, C and E may decide to restore the goods to you as set out below.

4) Ask for VAT Tribunal review.

You may well want to consult a solicitor before deciding what course of action to take.

The advantages and disadvantages of going down either of the above appeal routes are;

Court Proceedings,

1) Your case should be dealt with quicker.

2) Your vehicle and goods should not be disposed off by C and E

3) You will get an immediate decision from the Court.

4) Either party will have the right of a further appeal.

5) Costs will be incured if appeal is not upheld.

Tribunal Hearing,

1) Take much longer to get a Hearing and decision

2) No costs are incured even if appeal is not upheld.

3) Tribunals whilst allowing an appeal can make no directions on compensation or the return of seized items, they can only REFER THE MATTER BACK TO C and E FOR FURTHER REVIEW OF THEIR DECISION NOT TO RESTORE SEIZED GOODS, as per FA 1994.

Advice from one of our experts

The appeal route that I favour is via the VAT and Duties Tribunal under the Finance Act 1994, some of the many advantages being that you can have the hearing brought to or near the area where you live, unlike Court condemnation hearings under CEMA 1979 having to be held in the judicial area of where seizure was made. Other advantages are that you don't have to be represented by a solicitor and in the event of you loosing the case you don't incur any legal costs.

Appellants have a much higher success rate through the Tribunals, and an appeal to the same may be There are laid down procedures for making an appeal, these are clearly set out in made at any time, and either with or without an appeal for condemnation proceedings to the Court, also prior to or after a Court condemnation hearing.

TIPS

All dealings with C and E should be in writing, keep copies of all correspondence. DON'T be tempted to use the short cut route of the telephone.

Appeal – the more people who do, the more hope there is that the powers that be will finally realise what a damaging campaign this really is. We therefore urge you to appeal against condemnation via the Magistrates Court and lodge an appeal via the internal procedures.

Force the issue by referring to recent cases. C and E say they are taking them into account but this web magazine knows this to be nonsense – they will try it on as part of their policy of implied threats, "walk or wait 2 hours for an interview" (but we will still take your car anyway), and creating an impression you have broken the law attitude.

Past Court and Tribunal Decisions can be viewed on The Court Services web site. www.justice.gov.uk

Hopefully one day HM C and E will return to catching criminals.

Comment – whilst an ability to Appeal sounds terribly fair, the reality is that you are unlikely to succeed even if you win. So determined are HM Customs and Excise to win at any costs (where intimidation and bullying don't succeed) that they will appeal every stage of the way. Vast sums of money are being spent on Barristers and advisors, as well as tying up C and E Officers in Court for the day, chasing very small losses of revenue to the Exchequer.

This is a nasty wake up call for most British citizens who strongly feel that you are innocent until proven guilty, and that a success in Court is usually not appealed unless there is good reason to do so.

– Because the actions of HM C and E come under civil law, they only need to establish the balance of probability to take action – NO EVIDENCE NEEDED.

IMPORTANT TO NOTE; E.U. directive 92/12/eec suggests that the onus is placed C and E and not on the traveller. This directive also states that C and E should not stop the free trade between E.U. borders by it's citizens.

Civil or Criminal?

The CEMA 1979 Act allows actions taken to be both under the criminal and civil head. In most cases C and E choose the civil head. Under the criminal head, the onus of proof is placed upon C and E and their case must be "without doubt", under the civil head the onus of proof is placed upon the Appellant and C and E's case be one of "probability".

There have been several cases heard in the European Courts on the issue of VAT offences, where they were heard under the civil head in domestic law, but the European Courts have ruled that they should be under the criminal head. The courts ruled that there are three criterion as to whether an offence was criminal or civil, they are;

A. The status of the offence in domestic law. b. The nature of the offence. c. The penalty that could be imposed, and was that penalty intended to stop re-offending.

– If one considers the above points in United Kingdom Law, as to whether the case should be under the criminal head or not, one would have to answer a – no (could be civil), b – yes (dishonesty), c – yes (the penalty imposed was likened to a criminal penalty as it was intended to stop re-offending).

Getting goods back – before the Courts, the review

Once goods are seized, C and E may allow them to be returned to you, provided that you meet certain conditions, which may include the payment of a sum of money. This process is called restoration. Prohibited goods (gns, explosives, drugs etc.) are unlikely to be restored to you.

In certain cases, this restoration payment may be combined with the penalty – the compound settlement. This is called a 'combined sum' and is generally applied in situations where compounding can be offered and accepted immediately, for example where you have been caught smuggling goods on which duty should have been paid.

If you are unable – or unwilling – to pay the full combined sum, you may opt to pay the penalty part, therefore avoiding legal proceedings; however in this case we will retain the goods. Alternatively, you may decide to appeal against the seizure of the goods, provided you are still within the one-month appeal period. We think this is academic as the whole procedure comes under the civil head. Despite the sever penalties, you are not a criminal.

You may accept that the goods are liable to forfeiture and instead ask for a formal departmental review of either a refusal to restore the goods to you or the sum requested for restoration. Note however, that if C and E have already disposed of the goods that have been condemned as forfeit, the tribunal will be unable to restore them to you.

In order for C and E to review these matters, your request must be received within 45 calendar days of the notification of the decision – i.e. The decision not to restore or the restoration offer. If, after the matter has been reviewed, you still consider the decision to be unreasonable, you may appeal to the VAT and duties tribunal.

HM Customs and Excise are a public body and as such their decisions can be subject to Judicial Review if you believe a mistake has been made in law.

Appealing against seizureh

If you believe that C and E should not have seized your goods, you may appeal against the seizure. In order to lodge an appeal against seizure, you must write to the office of Customs and Excise which is dealing with the seizure, stating that you wish to appeal against the seizure. This is called a notice of claim.

The notice of claim must state your name and address, and – if you are not a resident of the United Kingdom or the Isle of Man – the name and address of a solicitor in the United Kingdom who is authorised to act on your behalf. This notice of claim must be made within one month of the date of the seizure or the date shown on the notice of seizure.

Once your claim is received, C and E will take the case to a Civil Court for them to decide whether the goods were liable to forfeiture and consequently whether we were entitled to seize them. You or your legal representative will have the opportunity to state why you feel that the goods should not have been seized. If the Court decides that the goods should not have been seized, they will be returned to you. This rarely happens, because the Court hearing is not an appeal into the whole procedure as such, although you do have the right to dispute whether it was legal or not (its very narrow, there is not much scope for argument as the 1 in 299 who lose will agree no doubt).

If you make a claim you may still ask for your goods back before the Court hearing. C and E may decide to return them upon the payment of a sum of money which will be no more than the value of the goods – including any duty and/or tax. This process is called delivery up. If the Court decides in C and E's favour the payment will be retained, otherwise a refund – less the duty and/or tax properly due – will be made.

Perhaps?

If they want to seize your car, refuse to hand it over. Let them call the Police and report it stolen to your insurance company. You avoid legal costs this way so it has been suggested.

Step by step

There are two possibilities that may assist you in eventually getting redress against Customs (to get your goods and car back). There can be no guarantee of success, and neither of these courses of action offers a quick fix, as each individual case varies. We advise you to proceed with both together – i.e. Appeal against both seizure and condemnation of the goods in the Magistrates Court and appeal to the VAT and Duties Tribunal under Sch. 3 CEMA 1979. You should state that they (C and E) should not dispose off the goods until such time as condemnation proceedings are brought before the courts.

If you have already been through the appeals processes and lost, we strongly advise you to write asking for a review in light of recent High Court decisions. If you did not bother due to lackof funds etc., we also advise you to ask for a review.

Your first appeal IN WRITING against the seizure, should be made within 30 days (details on back of Seizure Notice).

Notice 12A, must be followed to the word if your appeal is going to be successful. customs.hmrc.gov.uk

More information

– This is stated on Seizure Form C156.

"A Court will decide whether the goods are liable to seizure and forfeiture."

In this first writtenletter, you need to object to the seizure AND condemnation.

In your letter of appeal, you should put a strong case that the goods were for personal use or to be gifted, and can you please have them back? Show that you could finance the purchase, and do this by way of salary slips, bank statements etc. State the hardship seizure has caused you and your family, because of, for example, your medical record (heart attacks, other illness), need of a car to get to work, to hospital or school for children, if needed for charity work, or if on finance etc. and still being paid for.

– From Lindsay, Williams, Gabe and Hopping cases it was stated that C and E had to be seen to be using their discretion under CEMA 1979 sect. 152 and reasonable in their decision. That meant taking into account all of the facts. It also means they should not refuse an interview with the Review Officer, and that they must also consider what hardship the seizure would have a victim.

You should also ask for a personal meeting with the Review Officer – it must be shown that C and E have not wanted to consider all the facts and have therefore been unreasonable.

From the date of C and E's decision, you have the right within 45 days to request, under section 14(3) for C and E to carry out a further review of their decision not to restore.

If you planning to go to the Tribunal you must ask for a review first. Next

– The cases seen so far seem to indicate that these reviews all reach the same conclusion i.e. for Customs to keep the vehicle, as Customs' powers in this respect seem to be entirely discretionary.

– C and E's decision following their review, is a decision under section 15.

If you are not the vehicle owner, you should advise the owner (including any finance company when ownership has not passed to you under the finance agreement).

The reply from C and E after a further 28 days will inform you that the case is going to Magistrates Court for condemnation proceedings, because your appeal has been turned down (Customs and Excise Management Act 1979 sch. 3). They cannot condemn goods without the Courts agreement, although they only view Courts as part of the administrative procedure, and not a place where justice is dispensed. They did condemn goods before the Court hearing in the Lindsay case for example. This your chance to make a personal appeal, so turn up in Court on the appointed day.

What you must prove – that they only took into account one issue when deciding to seize your goods and/or car. For example, quantity of goods, travel history etc. You also have to show that you could have financed the goods yourself, or that you were a frequent traveller because of work, home in France (or were seeking to purchase a home there), and that C and E did not take other facts into account when reaching their decision. If you prove these were not taken into account, you will have a good chance of overturning the original decision made at the time of seizure.

– Theoretically you have more hope of getting something back through the Magistrates Court – they have the power to order restoration, although they rarely do (you only have a 1 in 300 chance of succeeding in Kent).

– If you conduct your own case, it will cost about £100 (court costs), unless you win.

– do not believe the disgraceful comments routinely given by C and E Officers "that there is no point appealing as we always win".

Latest news – in both the Lindsay and Williams cases, where victims won, the decisions were made on the Wednesbury law of proportionality (the penalty being imposed bearing some relationship to the offence). Also, C and E had to be seen as using their discretion as per CEMA 1979 s. 152 – they had to consider all of the facts and look at facts that they had not considered, such as hardship being imposed by seizure.

– C and E's policy since July 2000 gave no discretion to the Review Officer in line with section 152 (they really do think they are above the law).

In the recent Lindsay case it was found to be unreasonable and an error in law and ex (non) hypothesi (basis for reasoning or further investigation).

Hoverspeed Court Case – this reversed the burden of proof. Amazingly C and E are now trying to alter the Summons of people caught before the ruling.

Do not under any circumstances accept this change however it is put to you.

CEMA 1979 sch. 3 par. 9 (b) states that proceedings may be instituted in the place where the claimant resides or, if the claimant has specified a Solicitor, in the place where that Solicitor has his office.

– In reality they choose the place of seizure.

If C and E win condemnation proceedings at Court, your goods will be lost, although if you appeal they cannot do this (or they appeal themselves).

– Court route will take 3 – 4 months. The decision is instant.

If you lose, the next stage is The Crown Court – where your Appeal is heard (you pay).

C and E rarely if ever accept defeat and will appeal if you win at Magistrates Court.

– Crown Court represents you best chance of winning. Few people get this far and there is a strong feeling C and E will appeal to a higher Court, should they lose.

You should be referred to your local office of VAT and Excise Duties, to obtain the standard form to make an Appeal. If not, contact your local VAT Office yourself. There are five regional offices, the London Head Office is; VAT and Duties Tribunals, 15-19 Bedford Avenue, London. WC1B 3AS. Tel: 020 7631 4242 (CEMA Act 1979).

– Tribunal Hearing can take up to 13 months and the Decision up to 4 months.

This route of appeal comes under the Financial Act 1994.

VAT and Duties Tribunal

A VAT and Duties Tribunal will consider your case far more intelligently, but they DO NOT have the power to order restoration and can only ask Customs and Excise to review their decision. In other words, the very people who confiscated your goods will decide if they themselves were fair.

There is no cost to you for a Tribunal Hearing.

– Against a background of obvious contempt for any Appeals procedure (C and E will destroy your goods and sell any vehicle even before your appeal is heard) it is most unlikely they will review any case favourably. To do so would mean having to admit a mistake was made.

– If the Tribunal finds against C and E they will appeal to the High Court.

How to do it – Write to Customs and Excise asking if they will consider restoring seized goods, then within 45 days from the date of C and E's reply ask for them to review their decision not to restore. After receipt of their reply appeal to the VAT and Duties Tribunal (section 16). However an appeal under this section can only be made if a decision has been given under section 15 (C and E's decision following their review).

If you appeal direct to the Tribunal without first asking C and E to review your case they will apply to have you appeal struck out.

The advantages of going to the Tribunal is that you can bring the hearing to your area where you live, no risks of legal costs, your case is heard by legal experts in the subject.

Tribunal hearings may get you compensated for your loss.

Both legal routes should be used.

When you win in Court or have a favourable review

When you win (yes people do win)

At Court or Tribunal – Don't expect a gracious acceptance of defeat by C and E. Remember this is Operation Maximum Disruption and they will continue to disrupt your right to buy goods abroad, even when they lose in Court.

Send all letters demanding immediate compensation by registered post straight away (they will drag their heals terribly). Once again write to your MP and MEP expressing your outrage that having won, you still have not been compensated.

When they don't pay you compensation or make a ridiculous offer (usual) make a claim in the County Court for the amount owed (value of car and goods in the United Kingdom You are not liable for the expenses this way. Claim for time used in the case, taxies etc.

Involve a Solicitor at this stage if you have not already. They can claim their costs which makes it expensive for C and E to pursue these sort of actions. We like to think it makes THEM think about that they are doing.

If necessary go to your local county Court and put a claim in against C and E for the return of the tax you legally paid in France / Belgium (as long as your claim is for less than £1,000 you are entitled to do this).

Some victims have succeed via this route, usually being offered full settlement before the hearing.

On review – if they offer you your goods back, agree, but only if they reimburse you with the tax you paid in France / Belgium / Luxembourg or where ever, or pay your travel costs to buy them again. Insist on a letter guaranteeing free passage when purchasing that same quantity.

If you are successful and get your car back (Sell it, they will target you even though you won).

You will be offered the money value of the goods at French Prices – insist on the goods being replaced or the value in the United Kingdom being paid.

decision

They will have sold your car for a ridiculous price – insist on a replacement or the correct value in money terms. Expect to go to Court to fight your claim.

They will suggest your car was not driveable and offer you what they received at auction when they sold it before your appeal was heard (after it had been outside unattended for months). DON'T ACCEPT.

Write in before the case asking for their Authorities – this seems to scare them off.

In a position to make a claim?

The number for any claims for damage is; The Post Seizure Department on 01304 664683/4 and the fax number is 01304 664681.

Let your MP and MEP's know

Publicity helps and Customs hate being held to account. The only effective way of giving them notice you are fighting their behaviour and attitude is to copy all your correspondence in to your MP and MEP's. Add in your local paper for good measure.

A good example of how inviolving your MEP can bring results (www.europeanvoice.com 13th Feb. 2003);

Commission investigates Spanish treatment of British cigarette shoppers

FRITS Bolkestein is examining claims that Spanish customs officials are harassing tourists returning to the United Kingdom laden with cheap cigarettes.

The move follows proceedings by the European Commission against Britain for alleged heavy-handed treatment of cross-Channel shoppers returning from France with large quantities of cigarettes, wine and beer.

These cost less in France due to its much lower excise duties.

Bolkestein said the Spanish may be in breach of E.U. rules on free movement of goods, which allow travellers to stock up on cigarettes and alcohol, provided they are for their own consumption.

United Kingdom MEP Bill Newton Dunn complained that two of his constituents were forced to hand back 32 ten-pack cartons of cigarettes at Malaga airport; officials told them there was a four-carton limit. The couple were also fined £600 by the Spanish authority's.

The EU's rules on import and export of tobacco and alcoholic drinks include guidelines to help member states determine whether people are buying goods for their own use or for resale.

These suggest a limit of four cartons of cigarettes – the limit cited by Spanish customs. However, the guidelines state individual circumstances must be taken into account. For example, heavy smokers or people buying more goods for a wedding or party should be given extra leeway.

July 2001

Customs guilty of intimidation, claims MEP – By Peter Chapman

TAX chief Frits Bolkestein is investigating MEPs' claims that United Kingdom customs officials are harassing citizens who shop abroad for cheap alcoholic drinks and cigarettes.

The United Kingdom currently has some of the highest excise duty rates outside Scandinavia, resulting in the increasing popularity of so-called 'booze cruises' to French ports such as Calais, Dunkirk and Cherbourg. E.U. rules allow visitors to bring back goods for their "personal use" only and not for re-sale on the black market.

But Scottish Conservative MEP John Purvis has written to Bolkestein claiming he had received complaints from constituents who had been harassed by customs officials acting "virtually outside normal legal constraints". "The British government is attempting to maintain its very high excise rates on products such as tobacco and alcohol by intimidating travellers who are availing themselves of their rights to purchase tax-paid goods anywhere in the EU," Purvis argued.

He said the British customs force has increased in numbers with a remit from the United Kingdom treasury to eliminate the huge drain of excise taxes from its coffers. "They have therefore taken to confiscating individual travellers' purchases of tobacco, beer, wine or sprits on their own assessment of whether or not it is for 'personal use'," Purvis claimed.

In reply, Bolkestein is checking whether the United Kingdom has breached a 1992 directive that sets minimum guidelines for the amounts of goods which constitute personal use – although member states can set quantities above these levels. These include 800 cigarettes, 200 cigars, 10 litres of spirits, 110 litres of beer and 90 litres of wine.

He added his officials would examine the legality of the "system of controls and sanctions" applied by the United Kingdom.

Useful Outside links

Finance and Tax Tribunals. Useful source of old cases. www.financeandtaxtribunals.gov.uk

Compact Law – The Human Rights Act. www.compactlaw.co.uk

Bar Pro Bono – Bar Pro Bono. www.barprobono.org.uk

Citizens Advice Bureau – Citizens Advice Bureau. www.adviceguide.org.uk

Legal Pulse – Legal Pulse. www.legalpulse.co.uk

Decisions (very comprehensive listings). www.bailii.org

More – we have listed all the links you may find of use here

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