UT/2024/000070 - [2025] UKUT 00210 (TCC)

The Appellant submits that the FTT failed to consider its argument that, given the common pattern across the transactions, there was no material difference between the consignments for which it maintains a loading card was obtained (describing these as “fully-matched” transactions and the remaining 24 supplies out of the total of 72 (which it described as not “not fully-matched”. It is argued that the consistency in the transactional pattern should have led the FTT to conclude that all the consignments were genuine.

The Appellant’s position is, in essence, that if some transactions were removals, then all must be. However, we find no error of law in the FTT’s approach. As Ms Rao submitted, this argument amounts to saying that the FTT was required, on the evidence before it, to find that the goods had been removed.

First, for the reasons already discussed, that line of argument misstates the issue. The correct question was not whether the goods had been removed, but whether the Appellant had provided sufficient evidence of removal in respect of each specific transaction.

Second, even if the issue were framed as one of actual removal, or as we have found, sufficiency of evidence, the existence of a pattern or similarity across transactions would, at best, be a relevant factor. It would not compel a tribunal to conclude either that the goods had been removed or that there was sufficient evidence of removal. In either case, it would remain open to the tribunal to find that there was no removal or insufficient evidence in relation to each individual transaction.

Third, it is not clear that there was any evidential basis before the FTT to support the proposition that there were any transactions for which sufficient evidence of removal had been provided or that there were 48 transactions in respect of which the documentation could be described as “fully-matched”. The FTT had not made any finding that P&O boarding cards meant there was sufficient evidence of removal in respect of any of the transactions let alone the 48 the Appellant made reference to on the basis of the provision of 48 boarding cards. As already discussed under Ground 4 there were numerous difficulties with the Appellant’s case that the boarding cards matched up to the relevant loads. The cycle of transactions and the evidence relied upon, particularly the boarding cards, suffered from the flaws already discussed. None of the documents (alone or in combination) required the FTT to conclude that removal had occurred in any case. An ongoing relationship adds nothing to the analysis; an ongoing relationship with a Belgian VAT-registered company does not, in itself, demonstrate removal, as that company could have been purchasing goods for delivery within the UK.

Thus, even if the FTT had accepted that there was an ongoing commercial relationship, that would not have meant that the FTT would be compelled to accept that the evidence provided (with all the concerns regarding the limitations of what that evidence showed) was sufficient to establish that the evidential requirements were met in respect of any of the 72 consignments. Sufficient information still had to be provided for each transaction, and the existence of 72 sets of inadequate evidence does not cure that deficiency.

We therefore reject this ground of appeal.