Customs & Excise v Jack Baars Wholesale & Ors [2004] EWHC 18 (Ch) (16 January 2004)

Customs & Excise v Jack Baars Wholesale & Ors [2004] EWHC 18 (Ch) (16 January 2004)

There is a bona fide dispute on substantial grounds as to the civil liability for excise duty under Regulation 7(2), including its compatibility with EU law and its ultra vires status. The debt is not indisputable, and the proper forum for determination is the VAT and Duties Tribunal. Accordingly, winding up and bankruptcy orders are not made; the petitions are adjourned pending Tribunal appeals.

Citation
[2004] EWHC 18 (Ch)
Parties
Petitioner: HM Customs & Excise; Respondent: Jack Baars Wholesale; Respondent: Jack Baars; Respondent: Ann Carol Baars; Interested Party: Provisional Liquidator (Mr Kevin Goldfarb); Interested Party: Special Manager
Jurisdiction
England and Wales
Judgment Date
16 January 2004
Procedural Posture
Insolvency (winding Up and Bankruptcy Petitions) / Interlocutory Judgment on Winding Up and Bankruptcy Petitions, Applications to Set Aside Statutory Demands, and Appointment of Provisional Liquidator/interim Receiver/special Manager
Outcome
Petitions for winding up and bankruptcy adjourned; no orders made for winding up or bankruptcy at this stage.
Legal Topics
Excise Duty Liability, VAT Liability, Insolvent Partnerships Order 1994, Statutory Demands, Civil Liability Under EU Directives, Ultra Vires Regulations, Procedural Irregularity
Insolvency Company Law European Union Law Tax Law Excise Duty Liability VAT Liability Insolvent Partnerships Order 1994 Statutory Demands +3 more

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Parties

HM Customs & Excise

Petitioner

Jack Baars Wholesale

Respondent

Jack Baars

Respondent

Ann Carol Baars

Respondent

Provisional Liquidator (Mr Kevin Goldfarb)

Interested Party

Special Manager

Interested Party

Procedural Posture

Insolvency (winding Up and Bankruptcy Petitions) / Interlocutory Judgment on Winding Up and Bankruptcy Petitions, Applications to Set Aside Statutory Demands, and Appointment of Provisional Liquidator/interim Receiver/special Manager

Legal Issues

  1. 1 Whether Jack Baars Wholesale and its partners are civilly liable for excise duty and VAT under UK regulations implementing EU law
  2. 2 Whether Regulation 7(2) of the Excise Duty Points Regulations 2001 is ultra vires or incompatible with Council Directive 92/12/EEC
  3. 3 Whether the debt is bona fide disputed on substantial grounds so as to bar winding up and bankruptcy orders

Ratio Decidendi

There is a bona fide dispute on substantial grounds as to the civil liability for excise duty under Regulation 7(2), including its compatibility with EU law and its ultra vires status. The debt is not indisputable, and the proper forum for determination is the VAT and Duties Tribunal. Accordingly, winding up and bankruptcy orders are not made; the petitions are adjourned pending Tribunal appeals.

Court Disposition

Petitions for winding up and bankruptcy adjourned; no orders made for winding up or bankruptcy at this stage.

Orders

  • Adjournment of winding up and bankruptcy petitions pending Tribunal appeals
  • Provisional Liquidator, Interim Receiver, and Special Manager to remain in office