AGNIEZSKA HARTLEB T/A HARTLEB TRANSPORT v THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMS [2024] UKUT 00034 (TCC)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Adam Johnson,Judge Vimal Tilakapala |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Published date | 02 February 2024 |
UT Neutral citation number: [2024] UKUT 00034 (TCC)
UT (Tax & Chancery) Case Number: UT/2018/000005
Upper Tribunal
(Tax and Chancery Chamber)
The Royal Courts of Justice, Rolls Building, London
EXCISE DUTIES – whether the FTT erred in treating an employer as “holding” excise goods
for the purpose of Reg. 13(2)(b) of the Excise Goods (Holding, Movement and Duty Point)
Regulations 2010 in circumstances where the goods were in the physical possession of its
employee acting in the course of his employment – no – appeal dismissed
Heard on 13 June 2023
Judgment given on: 01 February 2024
Before
MR JUSTICE JOHNSON
JUDGE VIMAL TILAKAPALA
Between
AGNIEZSKA HARTLEB T/A HARTLEB TRANSPORT Appellant
and
THE COMMISSIONERS FOR
HIS MAJESTY’S REVENUE AND CUSTOMS Respondents
Representation:
For the Appellant: Christina Nicholas of Counsel
For the Respondents: Joshua Carey of Counsel, instructed by the General Counsel and
Solicitor to HM Revenue and Customs
1
DECISION
INTRODUCTION
1. This is an appeal by the Appellant Agnieszka Hartleb t/a Hartleb Transport from a
decision of the First-tier Tribunal (the “FTT” and the “Decision”) dated 4 September 2018
which confirmed an excise duty assessment in the sum of £130,913 together with an associated
penalty of £26,689. The Respondents are the Commissioners for His Majesty’s Revenue and
Customs (“HMRC”).
2. The Appellant runs a transport business in Poland providing two lorries and a driver for
transporting goods.
3. One of the Appellant’s drivers was stopped at Dover where Border Force discovered in
his lorry three pallets of cigarettes for which there was no evidence that duty had ever been
paid. The lorry and cigarettes were seized and as the legality of the seizure was not challenged
in condemnation proceedings in the Magistrates’ court, both the cigarettes and lorry were
condemned as forfeit although the authorities agreed to restore the lorry to the Appellant in
return for a fee.
4. The procedural history of the appeal is complex.
5. The Appellant sought on 5 June 2018 permission to appeal to the Upper Tribunal (the
“UT”) on eight grounds. These grounds were all dismissed by the FTT as it found that six of
the grounds disputed inferences made by the FTT from facts but failed to give reasons as to
why there were any errors in law, and two of the grounds appeared to be mistaken.
6. On 1 October 2018, the Appellant made a renewed application to the UT for permission
to appeal. The UT Judge (Judge Jonathan Richards, as he was then) considered that some of
the grounds of appeal related to the way in which the FTT had applied the law to the facts rather
than the inferences made by the FTT. He noted that several of the grounds involved arguments
that involved the attribution of knowledge to the Appellant and that similar issues had been
raised but not answered fully by the UT in Perfect v HMRC [2017] UKUT 467 (TCC). Given
the relative lack of authority at the time on what amounted to constructive knowledge,
Permission to Appeal was granted on the following single ground:
“The First Tier Tribunal erred in law in concluding, from the primary facts
that it found, that Ms Hartleb had sufficient constructive knowledge of the
criminal enterprise in relation to the excise goods so as to be liable to the duty
assessed under Regulation 13(2)(a) or Regulation 13(2)(b) of the Excise
Goods (Holding Movement and Duty Point) Regulations 2010”
7. Before the date of that appeal, Perfect had been heard by the Court of Appeal and an
application made by Mr Perfect to the CJEU for determination of whether a person in
possession of excise goods required actual or constructive knowledge of excise duty on those
goods being unpaid in order to be liable for that duty pursuant to Article 33(2) of Directive
2008/118/EC (this is addressed in more detail in our discussion below).
8. As the outcome of the CJEU determination was so relevant to the issues in the
Appellant’s appeal, it was decided by the UT on 11 December 2019 that the appeal would be
stayed until after the Court of Appeal’s determination following the CJEU’s response.
9. The CJEU’s determination of the question raised in Perfect was handed down in HM
Revenue & Commissioners v WR (C-279/19) on 10 June 2021. The stay imposed expired 28
days later. Given the material impact of the CJEU’s determination on the Appellant’s ground
of appeal, HMRC asked on 8 July 2021 for confirmation of whether the Appellant intended to
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