Dawson's (Wales) Ltd v Revenue & Customs [2023] EWCA Civ 332 (28 March 2023)

Dawson's (Wales) Ltd v Revenue & Customs [2023] EWCA Civ 332 (28 March 2023)

The Court of Appeal held that subjective intention to assert control is not a requirement for being a 'holder' of excise goods under Article 7(2)(b) of the Excise Directive and regulation 6 of the HMDP Regulations. The reference to intention in the Upper Tribunal's decision was wrong and cannot stand in light of the binding CJEU decision in HMRC v WR. The correct approach is to focus on physical possession unless another person with de facto or legal control is clearly identified. The test for 'holding' was not over-refined by the Upper Tribunal, and the factors set out for determining liability were appropriate. The meaning of 'holding' could not be determined as a preliminary issue on...

Citation
[2023] EWCA Civ 332
Parties
Appellant: Dawson's (Wales) Ltd; Respondents: The Commissioners for His Majesty's Revenue & Customs
Jurisdiction
England and Wales
Judgment Date
28 March 2023
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From Upper Tribunal (tax and Chancery Chamber)
Outcome
Appeal allowed in part; reference to intention to assert control in the Upper Tribunal's decision set aside; matter remitted to the First Tier Tribunal for determination on full facts.
Legal Topics
Excise Duty, Interpretation of 'holding' Under EU Directive 2008/118, Liability for Excise Duty, Preliminary Issues in Tax Appeals, Legal Certainty and Proportionality in Tax Assessments
Tax Law European Union Law Excise Duty Interpretation of 'holding' Under EU Directive 2008/118 Liability for Excise Duty Preliminary Issues in Tax Appeals Legal Certainty and Proportionality in Tax Assessments

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Parties

Dawson's (Wales) Ltd

Appellant

The Commissioners for His Majesty's Revenue & Customs

Respondents

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From Upper Tribunal (tax and Chancery Chamber)

Legal Issues

  1. 1 Whether 'holding' under Article 7(2)(b) of EU Directive 2008/118 and regulation 6 of the HMDP Regulations requires intention to assert control against others
  2. 2 Whether the Upper Tribunal erred in over-refining the test for control and in requiring intention as an element of 'holding'
  3. 3 Whether the meaning of 'holding' was appropriate to be determined as a preliminary issue

Ratio Decidendi

The Court of Appeal held that subjective intention to assert control is not a requirement for being a 'holder' of excise goods under Article 7(2)(b) of the Excise Directive and regulation 6 of the HMDP Regulations. The reference to intention in the Upper Tribunal's decision was wrong and cannot stand in light of the binding CJEU decision in HMRC v WR. The correct approach is to focus on physical possession unless another person with de facto or legal control is clearly identified. The test for 'holding' was not over-refined by the Upper Tribunal, and the factors set out for determining liability were appropriate. The meaning of 'holding' could not be determined as a preliminary issue on...

Court Disposition

Appeal allowed in part; reference to intention to assert control in the Upper Tribunal's decision set aside; matter remitted to the First Tier Tribunal for determination on full facts.

Orders

  • The reference to intention to assert control in the Upper Tribunal's decision is set aside.
  • The matter is remitted to the First Tier Tribunal for substantive determination on the full facts.