MCGEOWN TRANSPORT LIMITED v Her Majesty's Revenue & Customs, TC 08955
| Jurisdiction | UK Non-devolved |
| Court | First-tier Tribunal (Tax Chamber) |
| Judge | Dr Heidi POON |
| Judgment Date | 27 September 2023 |
| Neutral Citation | [2023] UKFTT 00854 |
| Reference | TC 08955 |
| Appellant | MCGEOWN TRANSPORT LIMITED |
| Respondent | Her Majesty's Revenue & Customs |
Neutral Citation: [2023] UKFTT 00854 (TC) Case Number: TC08955
FIRST-TIER TRIBUNAL
TAX CHAMBER By remote video hearing
Appeal reference: TC/2018/00143
PROCEDURE – respondents’ application to strike out appeal – assessment to excise duty after
seizure event – original pleadings as ‘innocent agent’ – appeal stayed behind Perfect –
appellant’s objection to strike out in substance an application to amend pleadings – principles
applicable to permission to amend grounds of appeal – version of facts raised inherently
implausible, self-contradictory, and unsupported by contemporaneous documentation –
proposed amendment refused; strike-out granted
Heard on: 31 March 2023
Judgment date: 27 September 2023
Before
TRIBUNAL JUDGE HEIDI POON
Between
MCGEOWN TRANSPORT LIMITED Appellant
and
THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMS
Respondents
Representation:
For the Appellant: Danny McNamee, of McNamee McDonnell Solicitors
For the Respondents: Connor Fallon, Senior litigator of HM Revenue and Customs’
Solicitor’s Office
1
DECISION
INTRODUCTION
1. The interlocutory hearing was to consider the respondents’ application of 22 August 2022
to strike out the proceedings in relation to the appeal by McGeown Transport Limited (‘the
appellant’) against the decision by the respondents (‘HMRC’) in relation to an excise duty
assessment in the sum of £1,640,936 (the ‘Assessment’).
2. The Assessment was raised on 11 September 2017 in respect of a consignment of
6,800,400 cigarettes being brought into the UK without excise duty having been paid on them.
3. The ground for the strike-out application is that the appellant’s case, as stated in its
original pleadings, has no prospect of success. Separately, in the appellant’s notice of objection
to the strike-out application, the appellant seeks to amend its grounds of appeal.
LEGISLATIVE FRAMEWORK
Tribunal Rules 2009
4. Pursuant to the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009
(‘Tribunal Rules’), the respondents apply for the appeal to be struck out on the basis that the
Tribunal does not have jurisdiction to hear the appeal under Rule 8(2)(a), or in the alternative,
that the appeal has no reasonable prospect of success under Rule 8(3)(c):
8. ‘(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 …’
8. ‘(3) The Tribunal may strike out the whole or a part of the proceedings if —
[…]
(c) the Tribunal considers there is no reasonable prospect of the appellant’s
case, or part of it, succeeding.’
EU 2008 Directive on excise duty
5. Council Directive 2008/118/EC concerning the general arrangements for excise duty (the
‘2008 Directive’) repealed Council Directive 92/12/EEC of 25 February 1992 on the general
arrangement for products subject to excise duty and on the holding, movement and monitoring
of such products (‘the 1992 Directive’). Article 33 of the 2008 Directive (under Section 2
Holding in another Member State) relevantly provides:
1. Without prejudice to Article 36 (1), where excise goods which have already
been released for consumption in one Member State are held for commercial
purposes in another Member State in order to be delivered or used there, they
shall be subject to excise duty and excise duty shall become chargeable in that
other Member State.
For the purposes of this Article, ‘holding for commercial purposes’ shall mean
the holding of excise goods by a person other than a private individual or by a
private individual for reasons other than his own use and transported by him, in
accordance with Article 32.
2. The chargeability conditions and rate of excise duty to be applied shall be
those in force on the date on which duty becomes chargeable in that other
Member State.
3. The person liable to pay the excise duty which has become chargeable shall
be, depending on the cases referred to in paragraph 1, the person making the
delivery or holding the goods intended for delivery, or to whom the goods are
delivered in the other Member State.
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