C00268

CUSTOMS DUTIES – RELIEF FROM IMPORT DUTIES ON PERMANENT IMPORTATIONS OF PERSONAL POSSESSIONS – Appellant imported a Harley Davidson motor cycle – did not meet the 6 month use requirement – Appellant relied on mistaken advice given by the National Advice Service – No grounds for remitting import duties – non binding advice not confirmed in writing did not constitute a special situation – Appellant could have ascertained the correct position if exercised proper care – Appeal dismissed. 

LONDON TRIBUNAL CENTRE

	JAMES ANDREW STRAIN   	Appellant

	- and -

	HER MAJESTY’S REVENUE and CUSTOMS	Respondents

			Tribunal: MICHAEL TILDESLEY OBE	 (Chairman)
				      DIANA WILSON                          (Member)	  

Sitting in public in London on 15 December 2008

The Appellant appeared in person

Sarabjit Singh counsel instructed by the Solicitor’s office of HM Revenue & Customs, for the Respondents

© CROWN COPYRIGHT 2008

DECISION
The Appeal
1.	The Appellant was appealing against the Respondents’ decision on review refusing transfer of residence relief from customs duties on the importation of a motor cycle from Canada. The amount of duties involved was £2,161 comprising £528 (Customs Duty) and £1,633 (VAT).
2.	We heard evidence from the Appellant. We received a bundle of documents in evidence.
The Dispute
3.	Council Regulation 918/83 EEC gives relief from  duties on vehicles for personal use imported into the Community if the person is moving his home to the Community after having had his normal home outside the Community for a continuous period of at least 12 months, and has possessed and used the vehicle for at least six months outside the Community before the date on which he ceased to have his normal place of residence in the third country of departure. 
4.	The Respondents Public Notice 3 Bringing your belongings and private motor vehicle to the United Kingdom from outside the European Community (April 2006) indicated that they would waive the requirements of normal home outside the Community for 12 months and  six months use, if the person was unable to meet them due to circumstances beyond his control.
5.	The Appellant was a serving soldier who lived outside the Community for a continuous period of 12 months before returning to the United Kingdom on 13 April 2007. On 2 February 2007 he purchased a Harley Davidson Motor Cycle in Canada which he imported into the United Kingdom arriving on 3 August 2007. 
6.	The Appellant accepted that he did not use the motorcycle for six months before setting up his normal home in the United Kingdom on 13 April 2007. However, he contended that the Respondents should waive this requirement so that he could qualify for the relief. The Appellant stated that he only purchased the motor cycle following advice in January 2007 from the Respondents’ National Advice Service that he would not be liable for import duties. Thus he argued that the Respondents were responsible for his mistake, and should exercise their discretion to remit the import duties because it constituted circumstances beyond his control within the meaning of Public Notice 3. 
7.	The Respondents stated that the importation of the motor cycle was clearly not eligible for relief since the Appellant had not used it for the requisite period of six months. The Respondents could find no record of a telephone call from the Appellant to the National Advice Service in January 2007.  Even if the telephone call had been made it did not prevent the Appellant from meeting the qualifications for the relief. Further telephone advice did not constitute an official error which may give grounds for remission of duties. In all the circumstances the Appellant’s Appeal should be dismissed.
Reasons for Decision
8.	We found the Appellant to be a truthful witness, and accept that he made the telephone enquiry of the National Advice Service in January 2007. Further we accept that he gave the adviser the facts surrounding the importation of the Harley Davidson motor cycle. However, we cannot be sure of the precise details of the advice given because the Appellant kept no written record of it.  Also the Appellant accepted that before he purchased the motor cycle he looked up on the Respondents’ website their advice on relief from duty for personal possessions. 
9.	The fact that the Appellant acted upon the advice given to him by the National Advice Service did not assist him with his Appeal. Our powers to order remission of the duties are set out in Articles 220 and 239 of Council Regulation 2913/92/EEC. Essentially Article 220 deals with official errors, whilst Article 239 gives the power to remit the duties where there has been a special situation and no obvious negligence on the part of the Appellant. In order for the Appellant to succeed he must demonstrate that the circumstances constituted a special situation. Further he was not negligent when he imported the motor cycle in contravention of the six month use requirement.
10.	The circumstances described did not constitute a special situation  in that the advice from National Advice Service was not an official error because it was not confirmed in writing  (see Halifax (Hampshire Christian Trust) v Revenue and Customs [2006] UKVAT (Customs) C00209 where the Tribunal decided that non-binding advice on the telephone did not amount to an official error). 
11.	Even if the advice had constituted a special situation the Appellant would have to demonstrate that his failure to meet the six month requirement of using the motor cycle was not due to obvious negligence on his part. Obvious negligence is widely drawn and applies where the error could have been detected by the Appellant, which is determined objectively on all the circumstances, in particular the complexity of the subject matter, the professional experience of the Appellant and the degree of care exercised.  In this situation the subject matter was not complex and the correct position could have been ascertained without difficulty by the Appellant by considering the relevant regulations. The Appellant accepted that he looked at the Respondents’ advice on their website before purchasing the motor cycle, and for some reason did not appreciate the significance of the six month use requirement. We are satisfied that the Appellant did not exercise proper care when he investigated the requirements for relief from duties for importation of personal possessions. He should not have relied simply on non-binding telephone advice.
12.	The facts did not amount to circumstances beyond his control. The non-binding telephone advice did not prevent him from discovering the correct position by examining carefully the advice given by the Respondents on their website. Further the term circumstances beyond his control in our view related to situations where the failure to meet the requisite requirements has been due to the intervention of an unexpected event rather than to a situation where reliance has been placed on incorrect advice.
Decision
13.	 For the reasons given above, we dismiss the Appeal. We make no order for costs.
14.	We note the Appellant’s concerns about the Respondents’ failure to carry out a review of their decision within the requisite time period. This is not a matter within our jurisdiction. The Appellant’s remedy is to instigate the Respondents’ complaint procedures, details of which can be found on their website.

                                

                                 MICHAEL TILDESLEY OBE
CHAIRMAN
RELEASE DATE: 15 January 2009

LON/2008/7003