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In relation to Ground 3
In relation to Ground 3:
Why the FTT rejected HMRC’s case and the evidence that Adrena was only used for the purpose of Global’s cover loads and failed to distinguish between the mirror and cover loads? (FTT [524], [638]).
Why, when the key question the Tribunal needed to ask itself was whether Global sold the alcohol in the EU or smuggled it into the UK and sold it thereafter (FTT [638]) did it not answer the question, but instead concluded that Adrena was responsible for the smuggling because it was named on the cover paperwork (and thus came forward to challenge a seizure)? (FTT [643])
Why, when the respondents had accepted Global supplied the alcohol that was ultimately slaughtered in the UK (FTT [638]), the FTT concluded Adrena supplied the alcohol notwithstanding the overwhelming banking evidence that it had not purchased that alcohol from Global (save for the amount regarding the cover loads)? (FTT [326])
Why the FTT concluded Adrena supplied the alcohol notwithstanding the transport analysis indicating goods were dispatched across the border from Global’s warehouse (not Adrena’s)?
Why the FTT concluded Adrena supplied the alcohol in the UK notwithstanding the respondents’ own witness, Mr Van de Vondel (the director of Adrena) did not give evidence to this effect?
Why (if Ground 2 is successful) it concluded Adrena supplied the alcohol notwithstanding there was no evidence from Mr Malde that Global sold the alcohol subject to the mirror loads to Adrena?
Why the Tribunal concluded that Adrena was the importer merely because that was the company used on the cover paperwork as the consignor (and thus stepped forward in event of a seizure) when it rejected the Respondents’ alternative cases that Corkteck was the importer of the diverted alcohol because it was named on the cover paperwork as the consignee? (FTT [617]-[637])
Why Adrena having its own corporate identity has any bearing on a) who owned and smuggled the mirror loads and b) how or why it contradicts the evidence that it was Global (not Adrena) who owned them? (FTT [642]-[643])
- Heading
- Introduction
- Background
- VAT
- Excise duties
- The FTT Decision
- The Grounds of Appeal
- Ground 1: the burden of proof
- Background
- The FTT Decision
- The parties’ submissions in outline
- The relevant case law principles
- The burden of proof in tax appeals
- The burden of proof in penalty appeals
- DLN
- Penalties under Schedule 24 FA 2007 and Schedule 41 FA 2008
- Ground 2: approach to the issues and evidence
- Background
- The FTT Decision
- Discussion
- Conclusion
- Ground 3: conclusions inconsistent with the underlying evidence
- Background
- The FTT decision
- The parties’ submissions in outline
- Discussion
- Application to the facts of this case
- Conclusion
- Ground 4: breach of “best judgment” requirement
- Background
- Relevant case law principles
- There are two distinct questions which arise where an assessment purports to be made under section 73(1) VATA: first, whether the assessment has been made under the power conferred by that section; an
- The test as to whether an assessment is made to the best of HMRC’s judgment is classically set out in the judgment of Woolf J in Van Boeckel , at page 292e-293a, where he said this
- As to whether an alleged error in an assessment is to be taken as evidence that the assessment was not made to the best of HMRC’s judgment, the relevant question is whether the mistake is consistent w
- There are, however, dangers in an over-rigid adherence to a two-stage approach (i.e. first, validity; second, quantum) to a challenge to a best judgment assessment. The important issue for the tribuna
- The FTT Decision
- The parties’ submissions in outline
- The only relevant test of whether the assessment met the best judgment requirement was whether the mistakes in the assessment were “consistent with an honest and genuine attempt to make a reasonable a
- Application to the facts of this case
- Ground 4
- Ground 5
- Conclusion
- Background
- In relation to Ground 3
- In relation to Ground 4
- In relation to Ground 5 Why, if there was a breach of the best judgement requirement, it rejected the Court of Appeal’s guidance in Pegasus Birds at [23-29] not to automatically set aside the whole assessment but instead to
- If the Tribunal considered Mr Foster’s failure to consider the York Wine bank statements was so “serious or fundamental” that it required the whole assessment to be set aside ( Pegasus Birds [29]), wh
- The parties’ submissions in outline
- Discussion
- Application to the facts of this case
- Conclusions