Whittalls Wines Ltd & European Food Brokers Ltd v The Commissioners For Her Majesty's Revenue & Customs, TC 06316
| Jurisdiction | UK Non-devolved |
| Judge | Rupert JONES |
| Judgment Date | 01 February 2018 |
| Neutral Citation | [2018] UKFTT 0036 (TC) |
| Respondent | The Commissioners For Her Majesty's Revenue & Customs |
| Appellant | Whittalls Wines Ltd & European Food Brokers Ltd |
| Reference | TC 06316 |
| Court | First-tier Tribunal (Tax Chamber) |
[2018] UKFTT 0036 (TC)
TC06316
Appeal numbers:
TC/2016/03839 &
TC/2016/03840
EXCISE DUTY – Duty Suspended alcohol – Registered owner of duty suspended
goods – Approval to operate as warehousekeeper – fit and proper persons -
Revocation of excise duty approvals under the Warehousekeepers and Owners of
Warehoused Goods Regulations (WOWGR) 1999 and sections 92 and 100G Customs
Due Diligence (ADD) condition - whether revocation decisions of HMRC could
inevitable same decisions arrived at - appeals dismissed
FIRST-TIER TRIBUNAL
TAX CHAMBER
(1) WHITTALLS WINES LIMITED
(2) EUROPEAN FOOD BROKERS LIMITED
Appellants
- and -
THE COMMISSIONERS FOR HER
MAJESTY’S
REVENUE & CUSTOMS
Respondents
TRIBUNAL:
JUDGE RUPERT JONES
Sitting in private at the Rolls Building, London on 5-6 June 2017 (reading days) 7-
9 June 2017, 12-15 June 2017, 19-23 June 2017, 26-30 June 2017, 3-6 July 2017 and
11-14 July 2017
With further written submissions from the Appellants dated 17 and 21 July 2017
and from the Respondents dated 20 and 26 July 2017
Philip Coppel QC and David Bedenham, Counsel for the Appellants
Stephen Nathan QC, Isabel McArdle and Gideon Barth, Counsel instructed by the
General Counsel and Solicitor to HM Revenue and Customs, for the Respondents
© CROWN COPYRIGHT 2018
2
DECISION
Paragraph
Number
Section
1
I. Introduction
3
II. The question at the heart of the appeals
5
III. Answering the question
12
IV. The appeals
18
V. The revocation decisions and evaluative conclusions
37
VI. Outline of the Appellants’ grounds of appeal
38
VII. The Law
125
VIII. The Evidence
131
IX. The Facts
169
i. The Chronology
630
ii. Factual findings on the four evaluative conclusions
633
iii. Due diligence
908
iv. Tax losses in supply chains
947
v. Irregularity in movements of duty suspended goods
1078
vi. Behaviour and attitude
1226
vii. Findings relevant to proportionality - impact on the Appellants’
businesses of revocation of duty suspended approvals
1250
X. Discussion and decision
1398
XI. Consideration of the Appellants’ submissions
1529
XII. Procedural issues
1616
XIII. Conclusion
3
Introduction
1. The Tribunal begins this decision by thanking the parties’ advisers and
representatives for their preparation and presentation of these appeals. They conducted
the case conscientiously and courteously throughout what was, no doubt, a demanding
hearing. Their assistance has been invaluable.
5
2. The Tribunal is mindful that following a trial of this size and length, with serious
ramifications for all, it will not be possible within this decision to deal with each point
of evidence and argument raised on behalf of the parties. Nonetheless, they can be
confident that the material has been considered even if not referred to herein.
The question at the heart of the appeals
10
3. Putting the voluminous evidence to one side, at the heart of determining these
complex appeals lies a simple question:
Were the decisions of Her Majesty’s Revenue & Customs (“HMRC”)
1
, that the
Appellants were not fit and proper persons to own and warehouse duty suspended
alcohol and therefore to revoke their approvals to do so, ones that could reasonably
15
have been arrived at and proportionate?
4. The identification of this question is an attempt to summarise specific grounds of
appeal which are somewhat more complicated. These grounds of appeal are dealt with
below.
Answering the question
20
5. The Tribunal is satisfied that the answer to the question above is ‘Yes’. HMRC’s
decisions, that the Appellants were not fit and proper persons to own and warehouse
duty suspended alcohol and therefore to revoke their approvals to do so, were ones that
could reasonably have been arrived at and were proportionate. The Tribunal is further
satisfied that the facts upon which HMRC rely as reasons in support of their decisions
25
have been established on the balance of probabilities, and to a high degree at that.
6. Each of the specific grounds of appeal fails for the reasons set out below.
7. The appeals are therefore dismissed.
8. The Tribunal’s reasons, which follow hereafter, are lengthy.
9. Nonetheless, it is worth noting the following from the outset. The Tribunal has
30
examined a large amount of oral and documentary evidence during the trial in June and
July 2017. This took place around one year after the decisions of HMRC of 8 July 2016
which are under challenge. The Tribunal has made findings of fact afresh by which to
1
Where the Tribunal refers to the decisions being made by ‘HMRC’, the material decisions
were made specifically by HMRC Officer Craig Lewis. In this decision, where the Tribunal refers to the
decisions made by ‘HMRC’, it reviews the reasonableness of the decisions and finds HMRC to have
acted reasonably, the term ‘HMRC’ is to be read as incorporating Officer Craig Lewis.
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