TC09667 - [2025] UKFTT 01254 (TC)

Fecha: 27-Ago-2025

Issues in dispute

Issues in dispute

The issues in dispute are as follows:

(1)

at the material time was the unit where the Goods were discovered leased to a third-party;

(2)

with regard to the Assessment, whether Len Lothian “held” the Goods at the material time. If the answer is “no”, reg. 6(1)(b) ED(HMDP)R 2010 is not met and the Assessment is to be cancelled.

(3)

with regard to the Penalty, if Len Lothian was “concerned in keeping” the Goods. If the answer is “no”, then the Penalty is to be cancelled: para. 4(1)(a) Sch.41 FA 2008. If the answer is “yes”, then the Tribunal must determine:

(a)

whether the failure to pay excise duty by Len Lothian was not deliberate and, if not, whether Len Lothian had a reasonable excuse: para. 20 Sch.41 FA 2008.

(b)

if not, whether the relevant disclosures by Len Lothian were unprompted, allowing a reduction for disclosure: paras. 12-13 Sch.41 FA 2008.

(c)

In any case, if the penalty should be subject to a reduction on the basis of special circumstances: paras. 14 Sch.41 FA 2008.

During the hearing it became apparent that, in the particular circumstances of this case, the parties agree that if Len Lothian “held” the Goods at the material time then (and only then) would they have been “concerned in keeping” the Goods.

It is common ground that proof of all the facts relevant to these issues is on the balance of probabilities, and that the burden of proof is on Len Lothian on all matters except as regards whether Len Lothian was “concerned in keeping” the Goods and whether disclosure was unprompted (where, in both instances, the burden of proof is on HMRC).

One further issue is as to whether it is possible for HMRC to make an assessment notwithstanding that there must have been a prior excise duty point to the one relied upon for the assessment under challenge. Len Lothian recognises that the Court of Appeal has held HMRC have power in those circumstances to issue an assessment: Dawson’s (Wales) Ltd v HMRC [2023] EWCA Civ 332; [2023] STC 734 (“Dawson’s”) at [84] to [94]. Len Lothian therefore intends not to argue this point at this stage, but reserves it in case the appeal goes further.