TC09667 - [2025] UKFTT 01254 (TC)

Fecha: 27-Ago-2025

Hartleb

Hartleb

24.

In Hartleb v HMRC [2024] UKUT 34 (TCC) (“Hartleb”) Johnson J and Judge Tilakapala stated that the four factors identified by the UT in Dawson’s (Wales) Ltd v HMRC [2019] UKUT 296 (TCC) “to be a useful guide in determining who to regard as holder in circumstances where physical possession and de facto and/or legal control are separated” (at [78]). This was notwithstanding the fact that in Dawson’s the factors were intended to aid identification of an earlier excise duty point. Those four factors were:

(1)

who had physical possession at the time that the alleged earlier excise duty point occurred;

(2)

who is the person alleged to have de facto or legal control over the goods who it is said should be assessed rather than the subsequent holder (if it is the case that the courier was an innocent agent and it is not appropriate to assess the courier), and how that person is said to have such control and the basis on which it was being exercised;

(3)

the time at which the excise duty point arose; and

(4)

where the goods were being held at the relevant time.

25.

Johnson J and Judge Tilakapala also confirmed that physical possession is not determinative: at [80], [82] and [90]-[92]. However, physical possession is the appropriate starting point: at [68], [81] and [83].

26.

HMRC also rely on the following passage in Hartleb where Johnson J and Judge Tilakapala quote the Opinion of Advocate General Tanchev in WR:

“93.
More specifically, and relevant to the issue in this case, we also note his further comments (our italics);
‘As the United Kingdom Government added, to import a knowledge requirement into the concept of ‘holding’ or ‘making the delivery’ in Article 8(1)(b) and Article 33(3) of the Directive would undermine its object and purpose. It would create a means by which excise duty could be evaded relatively easily. Thus an individual found in physical possession of chargeable goods, could – such as WR had done here – simply fail to identify the person who had employed him or her to transport the goods or any other details concerning ownership of the goods (either wilfully or because he or she had been given false details). [37]
Again, this would make it difficult to combat fraud and abuse, whereas the scheme of the Directive itself and recitals require that the national authorities must ensure that the tax debt is in fact collected …” [38]
94.
His acknowledgment of and response to the following submission made by WR is also instructive (again our italics):
[the submission]
“A decision that someone in WR’s position is liable to excise duty would cause commercial chaos because it would mean that a delivery driver (say, working for DHL) who collected a case of wine from point A and delivered it to point B would (simply because he knew or should have known from the markings on the package that it contained wine) be liable to account for duty if it turned out that no duty had been paid on that case [15]”
[the response]
“The argument raised by WR in relation to the example of a DHL driver (in point 15 of the present Opinion) can be easily dismissed, A person making a delivery for DHL would not be liable, but DHL – the undertaking itself – would. As the Netherlands Government pointed out, WR is to be regarded as self employed and thus as an entrepreneur who accepted to work without any written contract and to be paid in cash. Entrepreneurship involves entrepreneurial risk and that includes an entrepreneur being personally responsible for the persons with whom he or she does business and from whom he or she accepts commissions. Furthermore, an entrepreneur can protect himself or herself against such risks through insurance or by assigning those risks contractually to the clients” [39]

27.

HMRC say that this passage is authority that the lack of identifiability of a person (A), who would otherwise be a holder, may make another person (B) liable.