Gateway Shipping Ltd v The Commissioners for Her Majesty's Revenue & Customs, TC 02014
| Jurisdiction | UK Non-devolved |
| Judge | W Theodore O WALLACE |
| Judgment Date | 04 May 2012 |
| Neutral Citation | [2012] UKFTT 328 (TC) |
| Respondent | The Commissioners for Her Majesty's Revenue & Customs |
| Appellant | Gateway Shipping Ltd |
| Reference | TC 02014 |
| Court | First-tier Tribunal (Tax Chamber) |
[2012] UKFTT 328 (TC)
TC02014
Appeal number: LON/2008/7123
CUSTOMS DUTY – Hardship – Duty or security pending appeal – Post-
Clearance demand- Appellant the declarant – Joint and several liability for
debt – Appellant’s Customer successful in appeal against demand by HMRC
– Whether payment by Appellant to HMRC would cause irreparable damage
or serious economic damage – Relevance of dividends paid to controlling
shareholders – Relevance of Tribunal decision in favour of customer – FA
1994 s.16(3) – Community Customs Code (Reg (EEC) 92/2913) Act 244 –
Appeals entertained
FIRST-TIER TRIBUNAL
TAX CHAMBER
GATEWAY SHIPPING LTD Appellant
- and -
THE COMMISSIONERS FOR HER MAJESTY’S
REVENUE AND CUSTOMS Respondents
TRIBUNAL: JUDGE THEODORE WALLACE
ANDREW PERRIN FCA
Sitting in public in London on 21 and 22 July 2011 and 8 March 2012
John Shelley, CTA (Fellow), for the Appellant
Andrew McNab, instructed by the Solicitor for the Respondents
© CROWN COPYRIGHT 2012
2
DECISION
1. This decision concerns a hardship application in respect of consolidated
appeals against the following:
5 (1) a deemed review confirming a post clearance demand made on
8 June 2008 in respect of declarations by the Appellant of
consignments of garments imported from Bangladesh at GSP
preferential rates on the basis that the Appellant was jointly and
severally liable with the importer Marco Trading Co Ltd (“Marco”) for 10 the full duty of £149,994.58;
(2) a review decision dated 3 October 2008 upholding a further
post clearance demand on 12 August 2008 for £199,701.49 made on a
similar basis;
(3) a review decision dated 8 January 2009 upholding a decision to 15 refuse to remit the above duties under Article 220(2)(b) of the
Community Customs Code.
2. The first two appeals were consolidated by a direction on 7 February 2009.
On 24 February 2009 Customs applied for the appeal to be dismissed because it could 20 not be entertained as the duty had not been paid and no hardship certificate had been
issued; this application was under section 16(3)(b) of the Finance Act 1994. The third
appeal was consolidated on 22 May 2009. On 17 June 2009 HMRC applied for the
appeals to be struck out.
25 3. On 9 September 2009 following a hearing the Tribunal gave directions for the
hearing of a hardship application by the Appellant and directed that the question of
the compatibility of section 16(3) with Articles 243 and 244 of the Community
Customs Code, Council Regulation (EEC) No.92/2913, be deferred until the issue of
hardship is decided. 30
4. There was an initial hearing on 22 February 2010 before Judge Wallace sitting
alone at which Rodney Sutton ACA gave evidence for the Appellant and was cross-
examined. There was a hearing of a disclosure application by HMRC in respect of
hardship on 5 August 2010 following which agreed directions were given. On 20 35 December 2010 there was a further hearing on an application by HMRC to strike out
the appeal unless the Appellant complied with certain of the August directions; that
application was not granted, however the Tribunal directed the Appellant to produce
updated material for a two day hardship hearing in July 2011 with a report by Mr
Sutton on the financial statements to 1 June 2011, and for HMRC to serve statements 40 by any witnesses or expert and skeleton arguments.
5. At the hearing on 21 and 22 July 2011 Judge Wallace was joined by Mr Perrin
and HMRC were represented by Mr McNab in place of the counsel who appeared in
2010. 45
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