UT/2024/000117 - [2024] UKUT 00435 (TCC)

The following facts by way of background and chronology to the proceedings are taken from the FTT decision which Mr Eveleigh appeals against (published as Paul David Eveleigh v HMRC [2023] UKFTT 00356 (TC)) and subsequent correspondence referred to by the parties. No witness evidence was adduced for the application.

The substantive matter concerns Mr Eveleigh’s appeal against HMRC’s decision to uphold, on review, an excise duty assessment issued on 4 June 2018 in the sum of £121,666. That approximated to half the duty of £243,333 on 1,180kg of hand rolling tobacco found in a large goods vehicle Mr Eveleigh was driving (his passenger having been assessed for the other half) which was stopped at the UK Zone Coquelles while returning to the UK on 9 June 2017. Mr Eveleigh was not carrying the tobacco for his own purposes but had undertaken to transport it in return for £4,000 which he did not receive. On 24 April 2018 he pleaded guilty to charges of being knowingly concerned in the fraudulent evasion of excise duty, receiving a suspended 18 month imprisonment sentence. He was also ordered to do community service and pay a fine and costs.

Following an HMRC review decision upholding the 4 June 2018 excise duty assessment that HMRC then issued, Mr Eveleigh appealed to the FTT on 31 January 2019 (the FTT having given him permission to make a late appeal). HMRC subsequently sought to strike that out and a hearing took place at which Mr Eveleigh appeared without representation. In its summary decision of 29 July 2021, the FTT refused to strike out the appeal and issued directions identifying various legal issues for decision. Those concerned whether HMRC had any discretion regarding issue of the assessment, whether the FTT had jurisdiction to quash or vary an assessment on the basis it was disproportionate, and if so whether, on the facts, the assessment should be so quashed or varied.

At the substantive hearing which later took place on 8 and 9 June 2022 to decide those issues, Mr Eveleigh was represented pro bono by counsel, (Ms Brown and Ms Sheldon, who also now appear for him on that basis). In its decision of 3 April 2023, the FTT dismissed Mr Eveleigh’s appeal. An application for permission to appeal to the UT, drafted by Mr Eveleigh’s counsel, was filed with the FTT on 31 May 2023. The grounds are set out below (at [31]) and raise issues concerning whether HMRC had discretion to assess, issues of proportionality, irrationality and validity, and include arguments relating to Article 1 Protocol 1 ECHR. The FTT granted permission to appeal to the UT on all the grounds sought on 27 July 2023. It is not disputed that Mr Eveleigh was sent that decision and that the accompanying letter and guidance that typically accompany such decisions would have informed Mr Eveleigh of his right to appeal, the one month time limit for doing so (and the risk of losing the opportunity to appeal if that was not done) together with details of how and where to make the appeal. The Notice of Appeal was not however filed with the Upper Tribunal until 13 September 2024.