Z Ltd
| Jurisdiction | UK Non-devolved |
| Judgment Date | 06 March 2019 |
| Neutral Citation | [2019] UKFTT 169 (TC) |
| Date | 06 March 2019 |
| Court | First Tier Tribunal (Tax Chamber) |
[2019] UKFTT 0169 (TC)
Judge Ashley Greenbank
Michael Firth, instructed by TT Tax, appeared for the appellant
Ben Hayhurst and Natasha Barnes, instructed by the General Counsel and Solicitor to HM Revenue and Customs, appeared for the respondents
Procedure – Application for adjournment – Order for costs – Tribunal Procedure (First-tier Tribunal)(Tax Chamber) Rules 2009 (SI 2009/273), r. 10(1)(b).
[1] This appeal concerns the decision of the respondents, the Commissioners for Her Majesty's Revenue and Customs (“HMRC”), to revoke the approval of the appellant, Z Limited (“ZL”), as a duty representative under the Warehousekeepers and Owners of Warehoused Goods Regulations 1999 (“WOWGR 1999”). The decision to revoke ZL's approval as a duty representative is contained in a letter from HMRC to ZL dated 20 June 2017.
[2] Following the revocation of ZL's approval as a duty representative, ZL appealed against the decision to the First-tier Tribunal (“FTT”). ZL also commenced judicial review proceedings in the High Court challenging the revocation decision and seeking an interim injunction requiring HMRC to maintain ZL's status as a duty representative pending the appeal. More details of these proceedings are set out below.
[3] As part of the statutory appeal proceedings before the FTT, ZL applied for various issues to be heard as preliminary issues. HMRC objected to that application. The FTT arranged a case management hearing to hear that application. That hearing was scheduled for [the hearing date].
[4] Shortly before the hearing, HMRC requested an adjournment of the case management hearing pending a hearing in the Court of Appeal in the judicial review proceedings, which was due to take place on 28 September 2018.
[5] I heard HMRC's application for an adjournment at the commencement of the hearing on [the hearing date]. Having heard both parties, in an oral decision, I granted the adjournment and made an order under rule 10(1)(b) of the Tribunal Procedure (First-tier Tribunal)(Tax Chamber) Rules 2009 (“FTR”) for costs of the hearing to be borne by HMRC. The parties agreed to agree the form of the order following the hearing.
[6] On 22 October 2018, HMRC requested full written findings of fact and reasons for the decision to grant the adjournment and make an order for costs. This is the full decision.
[7] This decision is published in anonymized form. I have adopted the pseudonym “Z Limited” for the appellant.
[8] I have set out in the following paragraphs a brief history of the dispute and chronology of the proceedings.
- On 6 March 2017, HMRC issued a letter to ZL stating that they were minded to revoke its approval as a duty representative because they were not satisfied that ZL was a fit and proper person to hold such approval.
- On 20 March 2017, ZL made submissions as to why its approval should not be revoked but HMRC revoked ZL's approval on 20 June 2017.
- On 6 July 2017, ZL filed its notice of appeal against the decision with the FTT.
- On 11 July 2017, ZL requested that HMRC grant temporary and/or conditional approval to its remaining as a duty representative pending appeal but HMRC refused that request in a letter dated 18 July 2017.
- On 7 August 2017, ZL filed a claim for judicial review challenging both HMRC's revocation decision and the decision to refuse temporary approval. ZL also sought an interim injunction requiring HMRC to maintain ZL's status as a duty representative pending its appeal.The remedies sought by ZL in the application for judicial review included:a declaration that regulation 9(2) of the Warehousekeepers and Owners of Warehoused Goods Regulations 1999 (WOWGR 1999) is contrary to EU law and of no effect;a declaration that regulation 21(1) WOWGR 1999 is contrary to EU law and of no effect;a declaration that the requirement for overseas businesses, in particular those established in the EU, which have no UK business or fixed establishment, to have a duty representative in order to hold goods in an excise warehouse is contrary to EU law and of no effect;a declaration that HMRC's policy of requiring authorised warehousekeepers and duty representatives to carry out checks on the supply chains of goods passing through their warehouses in order to obtain or maintain approval is unlawful.
- On 2 October 2017, ZL made an application to stay the appeal before the FTT for 60 days pending the conclusion of its application for judicial review.
- On 11 October 2017, HMRC notified the FTT of its objections to ZL's application for a stay of the FTT proceedings.
- On 13 October 2017, an oral hearing on ZL's application for permission to apply for judicial review took place before Mr Justice Holman. (The decision is found at [2017] BTC 29.) Holman J refused permission to apply for judicial review on the grounds that ZL had an alternative remedy (i.e. the statutory appeal to the FTT). He also refused ZL's application for interim relief.In relation to the application for permission for judicial review, on the basis of a concession by Mr Hayhurst, Holman J concluded that the FTT would be in a position to consider and adjudicate upon the lawfulness of the duty representative regime as part of the statutory appeal. He said this (at [13] to [18]):[13] The claimants very strongly submit that in a whole range of ways the relevant regulations and also the publication EN 196 are unlawful. They say that they offend EU law. They say that they are discriminatory against foreign owners of dutiable goods. They say that they are disproportionate to any legitimate purpose. By their claim for judicial review they seek a range of declarations...
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