High Court dismisses appeal; vehicles did not leave EU customs territory at Brexit moment due to lack of proof.

THE HIGH COURT

IN THE MATTER OF A CASE STATED FROM THE TAX APPEALS

COMMISSION

[2025] IEHC 544

[Record No. 2023/83R]

BETWEEN

BELL TRANSPORT LIMITED

APPELLANT

AND

THE REVENUE COMMISSIONERS

RESPONDENT

JUDGMENT of Mr Justice Liam Kennedy delivered on 20 October 2025.

Introduction

1. This appeal concerns one of the many legal and tax consequences of the United Kingdom's departure from the European Union (“Brexit”), namely the customs duty liability potentially arising on the post-Brexit import of motor vehicles from Great Britain1 (“GB”) When the United Kingdom left the Union, there were different customs duty arrangements in the Withdrawal Agreement as between Great Britain and Northern Ireland (NI). Since the Appellant has abandoned the second question in the case stated (which concerned NI), this where such vehicles were in GB (and thus within the Union) immediately before GB’s moment of departure from the Union at 23:00 hrs on 31 December 2020 (“the MoD”). Due to Brexit, such vehicles were no longer deemed to be within the Union thereafter. The key issue– with potential implications in respect of the vehicles’ eligibility for Returned Goods Relief (“RGR”) from customs duty on their “re-import” to the EU - is whether the vehicles thus “left” the Union within the meaning of articles 154 and 203 of the Union Customs Code at the MoD. Save where otherwise noted, I will use defined terms as in the Determination.

2. In summary, the Appellant imported vehicles from GB in January and February 2021 (“the Period”), erroneously claiming GB Preferential Origin (“GBPO”) in respect of the vehicles which, if correct, would have entitled the importer to relief from the tariffs otherwise payable post-Brexit. When the Respondent queried the substituted claim, the Appellant quickly admitted that its original GBPO claim was incorrect, but, since then, it has asserted a claim for RGR in relation to all vehicles and a classification under heading 9705 of the CN (“the Classification”) in relation to three of them.

3. The Respondent says that the Appellant failed to furnish information and documentation required to confirm: (i) its status as a customs representative rather than importer; (ii) the basis for the GBPO and RGR claims and the Classification. The Commissioner agreed that: (a) the Appellant had not established that it was acting as customs representative rather than importer (rendering it liable for any tax due); and (b) the claims to GBPO and RGR or for Classification had not been substantiated.

4. While more issues were canvassed before the Commissioner, two questions were raised by case stated, only one of which remains live, namely:

case is now solely concerned with imports from GB. Therefore references to the UK and GB may be interchangeable in the limited context of this judgment.

“Was the Commissioner correct in law in finding that the goods did not lose their customs status within the meaning of Article 154 of the Council Regulation (EU) 952/13 (hereinafter "UCC") after the transition period ended on 31st December 2020?” The Appellant has abandoned a second question (as to whether certain imports from Northern Ireland required customs declarations and were subject to duty). However, with the benefit of legal representation in the High Court, the Appellant (which was not legally represented before the Commissioner or when the case stated was formulated) sought to amend to address additional questions as follows:

“Was the Commissioner correct in law in finding that the Appellant is not entitled to RGR pursuant to article 203(1) and/or (4) of the UCC?0Was the decision of the Commissioner in respect of the finding that the Appellant had lacked the requisite proofs to establish that it was entitled to RGR pursuant to article 203(1) and/or (4) of Council Regulation irrational in the circumstances?”

The Respondent observed that the issues underlying the additional questions were neither raised in the Appellant’s request for a case stated nor in its observations on the draft case stated but did not oppose the application to amend. I will allow the amendments de bene esse.

5. The Commissioner made the following material findings of fact: (i) the Appellant has operated as an established customs representative for over 20 years; (ii) prior to establishing the Appellant, its director, worked in the customs clearance area for over 20 years. In total, the Director has over 40 years' experience in the area of customs procedures; (iii) in the Period the Appellant imported vehicles from GB, claiming GBPO; (iv) the GBPO claim was made on the basis of country of origin documentation as evidenced by the Appellant choosing U116 when inputting administrative details into the Respondent’s Automated Import System (“AIS”) and the customs declarations; (v) on 23 February 2021, the Appellant agreed that the vehicles, at least for the most part, were not eligible for GBPO. Accordingly, the Appellant had incorrectly claimed GBPO over a large number of the vehicle imports; (vi) subsequently, the Appellant claimed RGR over all vehicles and, in relation to three vehicles, classification under Heading 9705 of the CN; (vii) the Appellant failed to enter into the AIS information required to establish it was acting as a customs representative and not the importer or to comply with the Respondent’s request for documentation to confirm its status as a customs representative; (viii) having regard to the rules relating to the value of non-originating material used in the production of a vehicle, a VIN is not capable of establishing a vehicle’s country of origin; (ix) the Appellant failed to provide information requested by the Respondent in relation to its GBPO and RGR claims and in respect of the classification of three cars under heading 9705 of the CN, despite numerous requests.

Relevant Legislation and guidelines

6. The parties cited the following legislation:- (a) Council Regulation (EU) 952/2013 (as amended) laying down the Union Customs Code; (b) Commission Regulation (EU) 2015/2447, the Union Customs Code Implementing Regulation ("the Implementing Regulation"); (c) The Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (“the Withdrawal Agreement”) ; and (d) The Treaty on European Union ("TEU"), and especially Article 50 TEU, which provides for a mechanism for the voluntary and unilateral withdrawal of a country from the European Union (“EU”). The Determination cited and analysed the key provisions as follows.

The Union Customs Code (“the UCC”)

7. The Determination identified the following relevant UCC provisions:

a. Article 15 provides:-

“Provision of information to the customs authorities

Any person directly or indirectly involved in the accomplishment of customs formalities or in customs controls shall, at the request of the customs authorities and within any time-limit specified, provide those authorities with all the requisite documents and information, in an appropriate form, and all the assistance necessary for the completion of those formalities or controls. The lodging of a customs declaration, temporary storage declaration, entry summary declaration, exit summary declaration, re-export declaration or re-export notification by a person to the customs authorities, or the submission of an application for an authorisation or any other decision, shall render the person concerned responsible for all of the following:

(a) the accuracy and completeness of the information given in the declaration, notification or application

(b) the authenticity, accuracy and validity of any document supporting the declaration, notification or application

(c) where applicable, compliance with all of the obligations relating to the placing of the goods in question under the customs procedure concerned, or to the conduct of the authorised operations The first subparagraph shall also apply to the provision of any information in any other form required by, or given to, the customs authorities. Where the declaration or notification is lodged, the application is submitted, or information is provided, by a customs representative of the person concerned, as referred to in Article 18, that customs representative shall also be bound by the obligations set out in the first subparagraph of this paragraph”.

b. Article 18 provides, inter alia:-

“Customs representative

Any person may appoint a customs representative. Such representation may be either direct, in which case the customs representative shall act in the name of and on behalf of another person, or indirect, in which case the customs representative shall act in his or her own name but on behalf of another person. A customs representative shall be established within the customs territory of the Union…”

c. Article 19 provides:-

“Empowerment

1. When dealing with the customs authorities, a customs representative shall state that he or she is acting on behalf of the person represented and shall specify whether the representation is direct or indirect. Persons who fail to state that they are acting as a customs representative or who state that they are acting as a customs representative without being empowered to do so shall be deemed to be acting in their own name and on their own behalf.

2. The customs authorities may require persons stating that they are acting as a customs representative to provide evidence of their empowerment by the person represented. In specific cases, the customs authorities shall not require such evidence to be provided.

3. The customs authorities shall not require a person acting as a customs representative, carrying out acts and formalities on a regular basis, to produce on every occasion evidence of empowerment, provided that such person is in a position to produce such evidence on request by the customs authorities”.

d. Article 104 provides:-

“Entry in the accounts

1. The customs authorities referred to in Article 101 shall enter in their accounts, in accordance with the national legislation, the amount of import or export duty payable as determined in accordance with that Article. The first subparagraph shall not apply in cases referred to in the second subparagraph of Article 102(1).

2. The customs authorities need not enter in the accounts amounts of import or export duty which, pursuant to Article 103, correspond to a customs debt which could no longer be notified to the debtor.

3. Member States shall determine the practical procedures for the entry in the accounts of the amounts of import or export duty...”

e. Article 105 inter alia provides:-

“Time of entry in the accounts

1.Where a customs debt is incurred as a result of the acceptance of the customs declaration of goods for a customs procedure…the customs authorities shall enter the amount of Import or export duty payable in the accounts within 14 days of the release of the goods...

2. Where goods may be released subject to certain conditions which govern either the determination of the amount of import or export duty payable or its collection, entry in the accounts shall take place within 14 days of the day on which the amount of import or export duty payable is determined or the obligation to pay that duty is fixed. However, where the customs debt relates to a provisional commercial policy measure taking the form of a duty, the amount of import or export duty payable shall be entered in the accounts within two months of the date of publication in the Official Journal of the European Union of the Regulation establishing the definitive commercial policy measure.

3. …

4. ...

5. …

f. Article 120 provides:-

“Equity

1. In cases other than those referred to in the second subparagraph of Article 116(1) and in Articles 117, 118 and 119 an amount of import or export duty shall be repaid or remitted in the interest of equity where a customs debt is incurred under special circumstances in which no deception or obvious negligence may be attributed to the debtor.

2. The special circumstances referred to in paragraph 1 shall be deemed to exist where it is clear from the circumstances of the case that the debtor is in an exceptional situation as compared with other operators engaged in the same business, and that, in the absence of such circumstances, he or she would not have suffered disadvantage by the collection of the amount of import or export duty”.

g. Article 150 provides:-

“Choice of a customs procedure

Except where otherwise provided, the declarant shall be free to choose the customs procedure under which to place the goods, under the conditions for that procedure, irrespective of their nature or quantity, or their country of origin, consignment or destination”.

h. Article 154 provides:-

“Loss of customs status of Union goods

Union goods shall become non-Union goods in the following cases:

(a) where they are taken out of the customs territory of the Union, insofar as the rules on internal transit do not apply… i. Article 163 provides:- “Supporting documents

1. The supporting documents required for the application of the provisions governing the customs procedure for which the goods are declared shall be in the declarant's possession and at the disposal of the customs authorities at the time when the customs declaration is lodged.

2. Supporting documents shall be provided to the customs authorities where Union legislation so requires or where necessary for customs controls.

3. In specific cases, economic operators may draw up the supporting documents provided they are authorised to do so by the customs authorities”.

j. Article 203 provides, inter alia:-

“Scope and effect

“1. Non-Union goods which, having originally been exported as Union goods from the customs territory of the Union, are returned to that territory within a period of three years and declared for release for free circulation shall, upon application by the person concerned, be granted relief from import duty. ...

2. ...

3. ...

4. Where Union goods have lost their customs status as Union goods pursuant to Article 154 and are subsequently released for free circulation, paragraphs 1,

2 and 3 shall apply.

5. The relief from import duty shall be granted only if goods are returned in the state in which they were exported.

The relief from import duty shall be supported by information establishing that the conditions for the relief are fulfilled." Union Customs Code Implementing Regulation Commission Regulation (EU) 2015/2447 ("the UCC Implementing Regulation")

8. The Determination identified the following provisions of the UCC Implementing Regulation:

a. Article 208 provides:-

“Proof of the customs status of Union goods for motorised road vehicles (Article 153(2) of the Code)

1. In the case of motorised road vehicles registered in a Member State which have temporarily left and re-entered the customs territory of the Union the customs status of Union goods shall be considered proven where they are accompanied by their registration plates and registration documents and the registration particulars shown on those plates and documents unambiguously indicate that registration.

2. Where the customs status of Union goods cannot be considered proven in accordance with paragraph 1, the proof of the customs status of Union goods shall be provided by one of the other means listed in Article 199 of this Regulation”.

b. Article 253 provides:-

“Information required (Article 203(6) of the Code)

1. The declarant shall make the information establishing that the conditions for relief from import duty have been fulfilled available to the customs office where the customs declaration for release for free circulation is lodged.

2. The information referred to in paragraph 1 may be provided by any of the following means:

(a) access to the relevant particulars of the customs or re-export declaration on the basis of which the returned goods were originally exported or re-exported from the customs territory of the Union;

(b) a print out, authenticated by the competent customs office, of the customs or reexport declaration on the basis of which the returned goods were originally exported or re-exported from the customs territory of the Union;

(c) a document issued by the competent customs office, with the relevant particulars of that customs declaration or re-export declaration;

(d) a document issued by the customs authorities certifying that the conditions for the relief from import duty have been fulfilled (information sheet INF3).

3. Where information available to the competent customs authorities establishes that the goods declared for release for free circulation were originally exported from the customs territory of the Union and at that time fulfilled the conditions for being granted relief from import duty as returned goods, the information referred to in paragraph 2 shall not be required.

4. Paragraph 2 shall not apply where goods may be declared for release for free circulation orally or by any other act. Nor shall it apply to the international movement of packing materials, means of transport or certain goods admitted under specific customs arrangements unless where provided otherwise”. Trade and Cooperation Agreement between the European Union (EU) and the United Kingdom (UK) of Great Britain (GB) and Northern Ireland (NI) ("the TCA")

9. The Determination identified the following provisions of the TCA:

a. Article 54 provides:-

Claim for preferential tariff treatment

1. The importing Party, on importation, shall grant preferential tariff treatment to a product originating in the other Party within the meaning of this Chapter on the basis of a claim by the importer for preferential tariff treatment. The importer shall be responsible for the correctness of the claim for preferential tariff treatment and for compliance with the requirements provided for in this Chapter.

2. A claim for preferential tariff treatment shall be based on:

(a) a statement on origin that the product is originating made out by the exporter; or

(b) the importer's knowledge that the product is originating.

3. The importer making the claim for preferential tariff treatment based on a statement on origin as referred to in point (a) of paragraph 2 shall keep the statement on origin and, when required by the customs authority of the importing Party, shall provide a copy thereof to that customs authority”.

b. Article 56 provides, inter alia, that:-

“Statement of Origin

1. A statement on origin shall be made out by an exporter of a product on the basis of information demonstrating that the product is originating, including, information on the originating status of materials used in the production of the product. The exporter shall be responsible for the correctness of the statement on origin and the information provided.

2. A statement on origin shall be made out using one of the language versions set out in Annex 7 in an invoice or on any other document that describes the originating product in sufficient detail to enable the identification of that product. The exporter shall be responsible for providing sufficient detail to allow the identification of the originating product. The importing Party shall not require the importer to submit a translation of the statement on origin.

3. A statement on origin shall be valid for 12 months from the date it was made out or for such longer period as provided by the Party of import up to a maximum of 24 months”.

c. Article 58 provides:-

“Importers Knowledge

1. For the purposes of a claim for preferential tariff treatment that is made under point

(b) of Article 54(2), the importer's knowledge that a product is originating in the exporting Party shall be based on information demonstrating that the product is originating and satisfies the requirements provided for in this Chapter.

2. Before claiming the preferential treatment, in the event that an importer is unable to obtain the information referred to in paragraph 1 of this Article as a result of the exporter deeming that information to be confidential information or for any other reason, the exporter may provide a statement on origin so that the importer may claim the preferential tariff treatment on the basis of point (a) of Article 54(2)”.

d. Article 59 provides, inter alia:-

“Record-keeping requirements

1. For a minimum of three years after the date of importation of the product, an importer making a claim for preferential tariff treatment for a product imported into the importing Party shall keep:

(a) If the claim was based on a statement on origin, the statement on origin made out by the exporter; or

(b) If the claim was based on the importer's knowledge, all records demonstrating that the product satisfies the requirements for obtaining originating status.

2. An exporter who has made out a statement on origin shall, for a minimum of four years … keep a copy of the statement on origin and all other records demonstrating that the product satisfies the requirements to obtain originating status.”

e. Article 61 provides inter alia:-

“Verification

1. The customs authority of the importing Party may conduct a verification as to whether a product is originating or whether the other requirements of this Chapter are satisfied,... Such verifications may be conducted by means of a request for information from the importer who made the claim referred to in Article 54, at the time the import declaration is submitted, before the release of the products, or after the release of the products.

2. The information requested pursuant to paragraph 1 shall cover no more than the following elements:

(a) if the claim was based on a statement on origin, that statement on origin; and

(b) information pertaining to the fulfilment of origin criteria, which is....”

10. The Determination also cited other sources such as; (a) Chapter 97 of the Council Regulation (EEC) No. 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff ("the CN"); (b) The Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, the Protocol on Ireland/Northern Ireland ("the Protocol"); (c) E-Customs Helpdesk Notifications 36/2020, 14/2021, 24/2021; (d) Guidance Note -Withdrawal of the United Kingdom and EU Rules in the Field of Customs (23 December 2020) ("the Commission Guidance Note").

The Determination

11. The Determination set out the background to the appeal against the Respondent’s imposition of customs duties following its Post Clearance Intervention ("PCI"), in relation to the Appellant’s importation of second-hand vehicles which were the subject of claims under GBPO and RGR. Vehicles imported from GB that qualify for PO attract a 0% customs duty rate. Vehicles not so entitled are subject to duty, generally at 10%. The Appellant also contends that, despite the entitlement to claim a benefit on the basis of GBPO and/or RGR, it is a customs representative only, rather than importer and thus, has no liability for any customs debt in any event. The Determination also summarised the parties' submissions and the evidence and dealt with issues which are not pursued on this appeal.

12. It appears from the Determination’s summary of the evidence of Mr Libreri for the Appellant, that much of his evidence consisted of assertions or submissions as to the meaning of the legal requirements. The Determination also notes, inter alia, that he: a. acknowledged mistakes in the documents submitted by the Appellant and in its responses to the Appellant, which he attributed to the recruitment of inexperienced staff under difficult circumstances (Brexit and the pandemic). Also, the AIS was introduced around the same time and it took the Appellant's employees considerable time to understand the new system and its menus. b. Asserted that RGR applies to all vehicles and that the Classification is appropriate in respect of three specified classic cars. c. Stated that the Appellant was a customs representative (not an importer) and, while that fact may not have been declared on the AIS for every import, it was clear from the conditions of carriage that the Appellant was acting as a customs representative, and the Appellant was not required to produce evidence of empowerment on every occasion. d. Stated that the empowerment documentation was available in relation to the vehicle imports and it was clear to all that the Appellant is not the importer. Accordingly, the debt was not the Appellant’s debt. He added that in any event it would be irrelevant whether or not the Appellant is the importer if the goods qualified for RGR.

e. Said that under article 54 the responsibility for the veracity of a GBPO claim lay with the importer (if it is relying on its knowledge) and that it would be unreasonable and illogical to expect anyone other than the importer to be in possession of such information. He noted that importer’s “knowledge” is not a document and accepted that, if the claim was made on the basis of a statement of origin, then the documentation should be available. f. Said in relation to GBPO that the Vehicle Identification Number (“VIN”) provides all information needed by the Respondent, which has often accepted the VIN as establishing origin. However, it would not do so here. g. Said that the three vehicles which are the subject of the Classification claim all have registration documents indicating their age. The vehicles’ classification is easily ascertained from their description and registration details. No further proof is required. Three conditions must be satisfied, and the only issue was whether there have been substantial changes to the vehicle, but purchasers were not interested in such cars if they were other than in their original condition. It is not “too much of a stretch to assume” that the cars were not substantially changed.

13. The Appellant only acts for its clients by way of direct representation - otherwise the Respondent may recover the debt from the Appellant.

14. The Determination also summarised the evidence of Mr Fitzpatrick, the Respondent’s representative, including his testimony that: a. the VIN cannot be used to establish origin for GBPO. The obligation is on the Appellant to have the requisite supporting documentation in accordance with article

163. The vast majority of its GBPO claims were made on the basis of a U116, statement of origin. Importers should know the documentation required.

b. The Respondent had been more than reasonable, giving the Appellant every opportunity to produce documentation and flagging RGR as an option which the motor vehicle imports could potentially benefit from. c. A customs declaration is a legally binding document and verifies for a revenue official what goods are being imported. This is important for the customs team. Article 15 of the UCC covers the accuracy of any customs documentation including a customs declaration and article 163 of the UCC Regulation provides that documentation shall be produced when requested. The customs debt was imposed because the Appellant did not furnish the requisite documentation. d. The Classification claim did not arise on the basis of the appellant’s initial return and the Appellant had still not provided information required to show that the imports have not been substantially altered, one of the Classification criteria.

Commissioner’s findings on the Appellant’s Grounds of Appeal

15. Paras. 42 – 97 of the Determination thoroughly analysed the issues, noting that the burden of proof rested with the Appellant. I have summarised below the Commissioner’s observations in respect of the grounds of appeal before her which appear most relevant to the issues I need to consider.

The Appellant acted as a Customs Representative and is not the Importer

16. The Commissioner disagreed with the Appellant’s submission that, if its contentions as to the eligibility of the vehicles for relief were correct, the Appellant’s status was immaterial. In any event, the Appellant contended that the debt should not be attributed to it, as it was acting as a direct representative rather than as importer. The Respondent disagreed, on the grounds that the Appellant neglected to input the requisite information to confirm that it was acting as a direct representative and because no evidence was produced (except for eight vehicles at the hearing) to show that it was acting as such.

17. The Commissioner noted that Section 2 of the UCC deals with customs representation. Article 18 provides that any person may appoint a representative in their dealings with the customs authorities and such representation can be direct or indirect. In the case of direct representation, the customs representative shall act in the name of and on behalf of another person and in the case of indirect representation, the representative acts in its own name but on another person’s behalf. The Appellant’s Director confirmed that he always operated on the basis of direct representation, as the risks associated with indirect representation and a customs debt being affixed to the Appellant, were too great.

18. Article 19 of the UCC requires a representative to state that it is acting on behalf of the person represented and whether the representation is direct or indirect. The Commissioner noted the mandatory terms of that requirement and the stipulation that persons who fail to state that they are acting as a customs representative shall be deemed to be acting on their own behalf. The evidence was that a "tick box" on AIS allowed a customs representative to input the required information but the Appellant did not complete the representation section on the AIS or the customs declarations. Consequently, the Respondent treated it as the importer. The Appellant's witnesses advanced various reasons for the failure to provide information such as staffing problems, sickness and the general Brexit chaos. The Commissioner noted that, as an experienced customs representative, the Appellant should have appreciated the importance of establishing customs representation. Article 19 authorises customs authorities to request a customs representative to provide evidence of empowerment, requiring customs representative to be in a position to produce such evidence on request.

19. The Commissioner also noted that article 15 requires the timely production on request of documentation and information in relation to the accomplishment of customs formalities or in customs controls. Again, the language is mandatory but the Respondent’s request for empowerment documentation was not complied with, despite the Appellant indicating in correspondence that the documentation was available for production.

20. While accepting the unprecedented Brexit scenario, the Commissioner considered that the Appellant was or should have been aware of the importance of correctly completing the representation details on the AIS and customs declarations. Moreover, the Respondent provided numerous extensions to comply with the request, yet the Appellant produced no documentation. Accordingly, the Commissioner was satisfied that the Appellant knew or should have known of its obligations in respect of the accurate completion of customs declarations and the provision of information and documentation, but it was in breach of articles 15 and 19 of the UCC.

21. The Commissioner concluded that, since the Appellant had not provided empowerment documentation, it had not discharged the burden of proof of establishing that it was acting as a direct representative. Accordingly, the Respondent was right to treat it as the importer.

22. The Appellant produced empowerment documents at the hearing, only some of which were relevant. The Respondent accepted that the empowerment documentation showed that the Appellant was acting as customs representative for eight vehicles and agreed to reduce the liabilities by €7,075.40, reducing the customs debt to €395,887.80.

“Duty is Not Owed As All Goods Are Entitled to RGR Under Article 203”

23. The Commissioner noted that GBPO was initially claimed in respect of most vehicles but that after the Respondent opened the PCI, the Appellant claimed RGR (the Respondent having highlighted the possibility to the Appellant in correspondence).

24. In January 2020, the UK entered a transition period until MoD, whereby it continued as if it were a full EU member state for the purposes of the movement of goods, services, and people. All goods not under customs supervision in GB lost their union status at the MoD. The Appellant contends that the vehicles were entitled to the benefit of RGR under article 203(4) of the UCC as they were union goods until the end of the transition period, as provided for in the Protocol, which caused them to be removed from the customs territory at MoD. The Appellant relied on article 154 of the UCC and on the Protocol which provides that union goods shall become non-union goods “where they are taken out of the customs territory of the Union, insofar as the rules on internal transit do not apply". The Appellant argued that the goods were taken out of the Union at the end of the Brexit transition period, the MoD.

25. The Commissioner noted the terms of article 203 and, in particular, article 203(4) which provides that "where union goods have lost their customs status as union goods pursuant to article 154 and are subsequently released for free circulation, paragraphs 1, 2, and 3 shall apply" (rendering them eligible for RGR). The Respondent did not accept that article 154 applied as the situation is not an export scenario, an article 203(1) requirement. Rather it is a country leaving the EU, an unprecedented scenario which is not envisaged by the UCC or by article 154 in particular. The Commissioner noted the Respondent’s argument that, whilst not binding, the Commission Guidance Note is relevant and RGR would not be available at all but for the Commission Guidance Note.

26. Both parties agreed that this is not an export scenario but the Appellant maintained that at the end of the transition period the goods were taken out of the customs union, in accordance with article 154, as that was when the goods lost their customs status and that no "export" is required for article 203 to apply, just that the goods are taken out of the customs union.

27. The Commissioner considered the Commission Guidance Note, in particular para.5.4, which states, inter alia, that:

"Where union goods are brought from the union to the UK before the end of the transition period, the provisions on returned goods referred to in Article 203 UCC apply if the economic operator can provide evidence that the Union goods:

- were transported to the UK prior to the end of the transition period; and

- return in an unaltered state in accordance with Article 203(5) UCC and Article

158 UCC DA. Please note that the end of the transition period is not one of the special circumstances that would allow exceeding the three-year period referred to in Article 203(1) UCC. The transport documents should serve as proof that the Union goods were taken to the UK prior to the end of the transition period, if necessary, accompanied by other relevant documents (e.g. lease contract). Where applicable, proof that the state of the goods has not been altered may be required'.

28. The Commissioner considered articles 154 and 203 of the UCC. She agreed that Brexit was unprecedented and thus not envisaged by the UCC. Accordingly, the loss of customs status in such a manner was not envisaged in article 154. The Commissioner concluded that the goods did not lose their customs status at the MoD in accordance with article 154, which had no application here. Having regard to the Guidance and the UCC Regulation, the Commissioner concluded that but for the Guidance, RGR could not be applicable. The goods would have been Union goods on their original import into GB, so it would have been an intra-EU transaction rather than an import from a non-Union country. Therefore, article 203 would not apply but for paragraph 5.4 as the goods on the date of export from the EU into GB would have been union goods prior to the end of the transition period. Article 203 is a facilitation by the EU.

29. However, the Commissioner considered that that finding did not preclude the vehicles from benefitting from RGR; instead, under the guidance the availability of the RGR was to be determined, having regard to the date upon which the goods were originally “exported” from the EU into GB (before the end of the transition period), as the goods had to be re-imported into the EU within three years from the original export date. In 2021 the Respondent set out in correspondence the proofs required for the Appellant to claim RGR and referred the Appellant to the Respondent's e-Customs Notification Helpdesk number for RGR guidance.

30. The Commissioner noted that requisite proofs were not provided to the Respondent to establish a claim of RGR. In the absence of such documentation, she was satisfied that the Respondent was correct to impose duty. The Appellant was aware of its obligations under article 15 of the UCC Regulation and its responsibilities following a request for information and documentation.

GB Preferential Origin

31. The TCA provides for zero tariffs on UK origin goods traded between GB and the EU that comply with rules of origin. The importer must claim on their customs declaration for preferential treatment and be able to prove origin. The rules for second hand vehicles are explicit and concern the value of non-original material used in the cars’ production.

32. The Appellant initially claimed GBPO in relation to most declarations, later conceding that most vehicles were not of GBPO. The Appellant's witnesses testified that RGR should apply to all the vehicle imports. Nevertheless, the Appellant stated that some may benefit from GBPO and the Appellant proceeded with this ground of appeal to the Commissioner.

33. Under article 54 of the TCA, an EU importer can only claim GBPO where it is in possession of either a statement of origin or importer’s knowledge. Moreover, article 54(1) renders the importer responsible for the correctness of the statement of origin and information provided.

34. The Commissioner noted the evidence that the claim for GBPO based on either the statement of origin or importers knowledge is declared on the AIS and customs declaration by using a "tick box".

35. The Appellant argued that importer’s knowledge does not require documentation to be produced and it is essentially the importer’s knowledge in relation to the vehicles. The Appellant, as customs representative, could not have such importer’s knowledge so, the Appellant contended that the Respondent should have pursued the importer for such information. The Appellant contended the importer was responsible for ensuring that the Rules of Origin rules were met. The Respondent disagreed, contending that a bill of materials used to make the vehicle, showing the originating materials, was required to prove importer’s knowledge and that a VIN is not sufficient for GBPO, as it does not provide this level of information.

36. The Respondent's witness stated that the Appellant's claims for GBPO were for the most part based on U116, namely a statement of origin. This can be seen from the customs declarations. The Appellant countered that such customs declarations can be amended. The Commissioner concluded that the Appellant made a claim for GBPO on the basis of U116. The Commissioner noted the importance of accuracy when completing customs declarations and the AIS, in respect of goods imported. The Commissioner was satisfied that, having chosen U116, the Appellant confirmed its reliance on documentation that it had in relation to statement of origin. It was required to have such documentation in its possession at the time of the declarations. Article 54(3) is unambiguous:

"The importer making the claim for preferential tariff treatment based on a statement on origin as referred to in point (a) of paragraph 2 shall keep the statement of origin and, when required by the customs authority of the importing Party, shall provide a copy thereof to that customs authority".

37. Accordingly, having regard to article 54, the Commissioner concluded that the Appellant should have been in a position to produce statement of origin documentation to the Respondent on request in order to establish its claim for GBPO. However, relevant proofs were not provided. The Commissioner concluded that the Respondent was correct to impose the duty in respect of the vehicle imports in the absence of such documentation.

Classification - Heading 9705 of the CN

38. The Appellant contended that three classic cars were eligible for classification under heading 9705 of the CN. Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff ([1987] OJ L 256/1) ("the 1987 Regulation") and Commission Implementing Regulation (EU 2018/ 1602 of 31 October 2018 amending Annex I to Council Regulation (EEC) No 2568/87 ([2018] OJ L 273/1) ("the 2018 Regulation") represent EU legislation which is directly applicable in all Member States (together, "the Regulations"). The purpose of those Regulations is to facilitate international trade by the establishment, inter alia, of tariff and statistical nomenclatures in conformity with an international harmonised system encompassing the rules applying to specific products imported into the EU. The CN is set out and established in Annex I to the 1987 Regulation as amended.

39. Chapter 97 of the CN provides for "Works of Art, Collectors' Pieces and Antiques". The Commissioner was satisfied that the importer must be in a position to provide the relevant proofs to establish an entitlement to classification under hearing 9705 namely, that the vehicles are in their original state, they are in excess of 30 years old and of a model or type that are no longer in production.

40. The Appellant's witness said it was “obvious” that the vehicles are more than 30 years old and no longer in production. However, no evidence was adduced in relation to the vehicles being in their original state, without substantial changes being made to them. The Appellant's witness argued that purchasers of such vehicles require them in their original state and it could be assumed that the vehicles were in their original state. The Commissioner notes that the Appellant's witness admitted that it may be possible but onerous to go back to the importers for a statement to that effect. The Commissioner notes that information relating to the vehicles’ original condition has been requested by the Respondent on numerous occasions, to establish whether the motor vehicle imports qualify for classification in this heading. However, it was not forthcoming.

41. The Commissioner considered that the heading 9705 requirements were clear and that the Appellant had not provided the requisite proofs. Moreover, she considered that actual proofs are required, as opposed to assumptions. Consequently, the Commissioner was satisfied that the Respondent was correct to impose the customs duty in respect of the said imports.

“The Debt Has Not Been Legally Established”

42. Article 105 of the UCC deals with time limits for entry of a customs debt into the accounts. The Respondent only entered the customs debt into the accounts on 29 September 2021. The Respondent relied on the Appellant's conduct, in terms of its failure to cooperate with the Respondent’s requests, and an IT issue in the Respondent's accounting system, as reasons why the debt was not entered in accordance with the article 105 time limits. The Appellant argued that such a failure to comply with the prescribed time limits should result in the debt not being due, but the Respondent stated that there is no consequence (other than to Ireland's reputation for customs compliance within the EU).

43. The Commissioner concluded that the Respondent did not enter the debt in accordance with article 105 of the UCC but that neither article 105, nor any other UCC provision, provides for cancellation of a customs debt for failure to enter the debt on time. Even if some consequence for the Appellant flowed from this, the Respondent had relied on unforeseeable circumstances as the reason why the debt was not entered until 29 September 2021, accepting the uncontested evidence as to the IT issue.

44. The Commissioner also accepted that the Respondent gave the Appellant every opportunity to provide empowerment documentation to show that it was a customs representative rather than importer, both prior to and following the issuing of the debt notification. However, no documentation was provided and the Respondent proceeded to enter the debt in accordance with article 105 of the UCC.

Equity

45. The Appellant argues that it is not in the business of buying or selling vehicles, it did not benefit from the misdeclarations and could not recover any liabilities from the importers.

Article 120 of the UCC deals with equity, providing for a situation where a customs debt is incurred under special circumstances, such as where the debtor is in an exceptional situation as compared with other operators in the same business. The Commissioner concluded that the Appellant had not shown that, on balance, it is a debtor to which article 120 applies.

46. The Commissioner also noted further points:

• The Appellant should not have claimed GBPO or RGR without the supporting documentation and proofs required to support such claims. The Appellant incorrectly claimed GPBO at the outset. Furthermore, lists of imports submitted at the hearing were still not entirely accurate and the VIN's were misrepresented on some of them. The Commissioner noted the importance of ensuring that goods imported are supported by the necessary information and documentation, in accordance with the UCC and TCA.

• The Commissioner concluded that the evidence illustrated the Appellant's disregard for the applicable rules and regulations. It was a long-standing customs representative but failed to abide by basic rules relating to its role. It maintained that it was solely a customs representative, not the importer, yet failed to complete declarations required by a customs representative, in breach of articles 18 and 19. Moreover, in breach of article 15, it refused when requested to provide empowerment documentation to the Respondent in relation to its appointment as a customs representative, in addition to the proofs to support its various claims, such as country of origin documentation. This was despite its stating in correspondence, on a number of occasions, that such documentation was available.

• In response to the Appellant's witnesses’ claims that it was not necessary to provide empowerment documentation, because, if the relief claimed applies to the vehicles then it did not matter, the Commissioner concluded that, having regard to the language of the UCC, compliance with the Respondent’s requests for such documents was mandatory. The requirement protects the integrity of Ireland's customs procedures, borders and reputation in terms of customs clearance procedures. Customs declarations submitted by the Appellant are legally binding returns, similar to any other return to the Respondent. The Appellant was aware of its obligations when the Respondent engages its powers. Further, the Commissioner noted that, having claimed GBPO on the vast majority of the imports, only weeks later it conceded that the goods were not entitled to GBPO.

• Whilst the Commissioner acknowledged the difficult period in early 2021, the Appellant had maintained its refusal to provide any documentation to the Respondent despite the Respondent engaging in lengthy correspondence, telephone calls and provision of further timelines for submission of the required proofs. Notably, once supporting documentation was received, the Respondent was willing to assess each declaration to evaluate whether or not the vehicles were entitled to the 0% rate, irrespective of whether it applied on the basis GBPO or RGR. Yet, at no stage had the Appellant provided evidence required to allow the Respondent to evaluate the claims.

47. On that basis, the Commissioner determined that the Appellant had not succeeded in showing that the tax was not payable and she determined that the Notification of Customs Debt in the agreed amended sum of €395,887.80 should stand. I largely agree with her conclusions.

The Appellant’s Arguments on this Appeal as summarised by the Commissioner

48. The Appellant’s arguments in support of this appeal as summarised by the Commissioner (and excluding the abandoned issue) may be paraphrased as follows; (a) duty is not owed as all declarations are entitled to RGR pursuant to article 203 or, in some cases, GB preference; (b) having acted as a direct representative, the Appellant is not responsible for any debt. There are valid reasons why this is sometimes not stated in the declarations; (c) the declarations are entitled to RGR or GBPO in any event. (d) the obligation to prove origin clearly lies with the importer; (e) the Appellant identified three vehicles older than 30 years, correctly classified at 9705; (e) the debt had not been legally established or entered in the accounts as required by articles 104 and 105 Council regulation (EU) 952/13; (f) the Appellant did not benefit from the misdeclarations and would stands catastrophic damage with little chance of recovering the duty from the beneficiaries.

49. The Appellant's oral and written High Court submissions were as follows: a. The Appellant is a customs clearance agent for commercial entities importing into the State. It imported 279 second-hand vehicles for clients during the Period. After months of correspondence, the Respondent issued a Notification of Customs Debt claiming €402,963.20. The Appellant unsuccessfully appealed to the Tax Appeals Commission (“TAC”) seeking RGR pursuant to article 203. Article 203(4)

provides, inter alia, that goods that have lost their customs status as Union goods pursuant to article 154 shall be entitled to RGR if they are released for free circulation. b. All parties agreed that the goods lost their customs status at MoD but the principal issue was whether the Commissioner was correct in finding that the goods did not lose their customs status within the meaning of Article 154. The Appellant says that on the UK’s exit, any goods within GB lost their customs status within the meaning of article 154 and that such goods would be entitled to RGR, pursuant to article 203 (4). Article 203() and/or (4) UCC ought to be interpreted in a sense that allows goods which were in free circulation in GB immediately before the UK left the EU to benefit from RGR. c. The Appellant relied on general principles of interpretation of European law citing those principles at length. (While I have reflected on the authorities cited, I have not summarised those decisions in this judgment because there was no great controversy about those principles of interpretation other than whether there is any basis in the current scenario to depart from the literal interpretation of the key provisions or whether the wording is clear and precise, excluding the scope for a contextual or teleological interpretation). d. Article 154 UCC states, inter alia, that Union goods shall become non-Union goods “Where they are taken out of the customs territory of the Union, insofar as the rules on internal transit do not apply”. The term used is "taken out", not exported or removed. The previous customs code (article 102 of the Modernized Community Code) used the word "moved". The right to free movement of goods which are in free circulation in Member States is a fundamental principle of EU law (article 28 of the Treaty on the Functioning of the European Union).

e. Union goods, (goods originating in the Union), or non-Union goods which have already borne customs duties on import into the Union can lose their free circulation status by operation of law in accordance with article 154 UCC or by physical exportation. When goods lose their free circulation status for any reason, they are treated as non-Union goods on their re-entry into the Union, and are subject to duty, unless they are eligible for relief provided by law, such as RGR. f. It is common ground that these goods were in free circulation and had the status of Union goods until MoD after which they no longer had Union status, so clearly the goods lost their status as Union goods at MoD.

That change of status occurred due to operation of law (the Withdrawal Agreement and associated legislation), as opposed to physical exportation. Mr Fitzpatrick’s evidence for the Respondent was that there was no export and the goods had "lost their status because of Brexit." That change in status comes within article 154 - "goods taken out of the customs territory". As the UK left the Union at the MoD, the Commissioner erred in law - on the UK’s departure, all goods in GB were "taken out" of the EU within the meaning of article 154. Mr Fitzpatrick seemed to support this interpretation when cross examined. g.

The vehicles’ UK registration prior to MoD is evidence that they moved or were transported to or originated in GB before the end of the transition period and were thus "Union goods" and in free circulation. Thus, all article 154 requirements are fulfilled. Accordingly, articles 154 and 203(4) entitle the Appellant to RGR. h. Alternatively, reliance can be placed on article 203(1). The primary purpose of articles 203 and 154 and RGR is to restore the customs status quo ante of the goods, relieving returned goods of double taxation on non-Union goods that had already borne customs duties, and at the same time, avoiding levying third country customs duties on goods originating within the Union. i.

In international law terms, the UCC provisions relating to RGR are governed by the terms of the Revised Kyoto Convention. j. The general principle against double taxation in EU law is also supportive of the Appellant (and the Appellant cited C-128/08 Jacques Damseaux v Belgian State, at paras. 28&30). Further, the ECJ has ruled that double taxation in a customs context is contrary to the concept of a customs union (citing C-252/87 Hauptzollamt Hamburg-St. Annen v Wilhelm Kiwall KG (“Kirwall”) at para. 11). The avoidance of double taxation is a generally recognised principle of EU law and international law, treated as such across the full spectrum of taxation.

Kiwall is of particular relevance, and is binding in light of article 4(4) of the Withdrawal Agreement.

50. The Appellant’s alternative submission as summarised by the Commissioner referenced the contention that article 203(1) of the UCC applied and no duty should apply if the Appellant satisfied its conditions. The Appellant submitted that: a. Those conditions placed the onus on the Appellant to satisfy the Respondent that the goods were transported into GB in the three years prior to the MoD. b. On a literal interpretation, goods were not "exported" from one member state to another prior to MoD. Both parties accept that such a transaction was intra-EU trade, not a true "export".

Thus, the Appellant does not accept that article 203 (1) applies. c. Nevertheless, the Commissioner adopted an interpretation of article 203 (1) and in particular the word "exported", as relied upon by the Respondent, that goods - were indeed "exported" from one member state to another prior to MoD (even though those goods had free circulation union status). The Appellant does not accept that the Commission and/or the TAC are entitled to apply such an interpretation as there is no ambiguity in the use of the word export in article 203(1). There is no "export" and the requirements of article 203 (1) - including the three-year rule - do not apply. d.

The issue is whether the three-year rule is applied prior, or subsequent, to 31 December 2020. The Appellant says that if article 203 (1) has any application in the current circumstances, the three years commences at MoD. e. The conditions of article 203(1) are fulfilled, as the purpose of the provision is to avoid goods which have been in free circulation within the EU becoming subject to import duty if they return to the EU within three years. Thus, cars in GB (having had free circulation status up to the MoD) can re-enter the EU at any stage within the period and qualify for RGR relief under article 203(1). f.

The Respondent demand for documentation to establish that the vehicles had moved into GB prior to MoD was unnecessary, and irrational, as the restriction to three years prior to MoD had no lawful basis. The Respondent relied on the Commission Guidance Document but that is not a definitive aid to interpretation and must yield to the judicial interpretation of articles 203 and 154. Such Guidance documents are of an explanatory and illustrative nature. Customs legislation takes precedence. The authentic texts of the EU legal acts are those published in the European Union’s Official Journal. g.

The evidence before the Commissioner was that Revenue do allow RGR for 2019, 2020 and 2021 cars. Thus, the Respondent is accepting that RGR relief applies to those vehicles. The Appellant submits that RGR should apply, irrespective of the year. European goods at MoD remain European goods irrespective of the car’s year of manufacture or of the date it entered GB. h. The Revenue demand to establish when the cars moved into GB is also disproportionate as the VIN number of European manufactured cars gives sufficient information for RGR. The VIN number of each vehicle was provided.

If a car was manufactured outside GB on a particular date and registered in GB on another date it must have moved between those dates. The registration document gives a registration date. Both documents combined establish that the vehicles were moved into GB and thus within the EU prior to MoD and hence are entitled to relief. The Revenue requirement for "travel documentation" to prove the date of travel is irrational and disproportionate. i. In summary, the Appellant's case is consistent with EU Law, in that it looks to establish the "purpose" or "objective" of the provision, and as required by EU law, interprets the provision in question in light of the overall scheme and objectives of EU customs law. j.

The Withdrawal Agreement, being an EU customs act by definition, caused the goods to be taken out of the Union’s customs territory. Article 154 and/or 203 (1) and/or (4), taking into account its purpose and objective, apply and accordingly, RGR applies, and no duty should be payable.

Respondent’s Submissions

51. The Respondent's oral and written submissions in the High Court were as follows: a. The Appellant claimed that the second-hand vehicles qualified for RGR and GBPO, but failed, despite several requests, to prove its entitlement thereto. After months of correspondence, a debt notification issued to the Appellant for the Customs Debt ("CD"). The Appellant appealed and the Appeal Commissioner determined that the Notification in the agreed amended sum of €395,887.80 was valid. The Appellant then requested the case stated to the High Court.

b. The Customs Union is an exclusive EU competence and each Member State is bound by the UCC. Member States must apply the UCC and act in accordance with Guidance Notes, published by the Commission. c. When the Withdrawal Agreement was ratified, the UK entered a "transition period" from 1 February 2020 until MoD under article 126 of the Withdrawal Agreement. During this period, the UK continued, for the purposes of the movement of goods, services and people, as if it were a full EU Member State. At MoD, all goods in GB not under customs supervision lost their Union Customs status. d. Article 201 UCC provides for non-Union-goods to be “placed under release for free circulation". e. Article 201(2)(a) provides for the collection of Customs Duty as one of the criteria for such releases. The applicable rate is provided for in the Common Customs Tariff ("CCT"). The tariff is common to all EU members, but the rates differ depending on the nature, origin and economic sensitivity of the goods. The general duty rate applied to second-hand vehicles imported into the EU is 10%. f. In certain circumstances, relief from duty can be claimed, if the importer is entitled to claim the relief and that entitlement is proven. At no stage did the Appellant produce the required proofs. (It is well established that the burden of proof in tax appeals rests on the appellant (see e.g., Menolly Homes Ltd v Appeal Commissioners [2010] IEHC 49, paras. 20-22) and the burden was not met in this appeal either). g. The Appellant accepts that the vehicles lost their Customs Union status by "operation of law" following the Withdrawal Agreement, but contends that, upon the UK leaving the EU, all goods in GB were "taken out" of the customs territory of the Union within the meaning of Article 154. Article 154(a) provides, inter alia that: "Union goods shall become non-Union goods ... Where they are taken out of the customs territory of the Union, insofar as the rules on internal transit do not apply". h. It is common ground that the vehicles lost their Customs Union status by operation of law because of Brexit. The change in status was not due to physical relocation, but because of Article 50(3) TEU and the Withdrawal Agreement. The following provisions of the Withdrawal Agreement, in addition to Article 50(3) TEU, are relevant: i. Its preamble states:

"Recalling that, pursuant to Article 50 TEU…, and subject to the arrangements laid down in this Agreement, the law of the Union…in its entirety ceases to apply to the United Kingdom from the date of entry into force of this Agreement". ii. Article 47(1)&(2) concern the Customs Union status of goods and article 5(23) UCC which interacts with these provisions and is also relevant. In particular, article 47(2) confirms that there is no entitlement to the presumption of Customs Union status: "the presumption of the customs status of Union goods as referred to in Article 153(1) of Regulation (EU) No 952/2013 shall not apply.

The customs status of those goods as Union goods ... shall need to be proven for every movement by the person concerned by any of the means referred to in Article 199 of Commission Implementing Regulation (EU) 2015/2447(24)." iii. Articles 126 and 127 provided for a transitional period. In effect, EU law ceased to apply in GB from MoD and all goods in GB (not under customs supervision) were legally deemed to no longer maintain Customs Union status. The removal of this status was not and could not have been provided for in the UCC from 2013. i. Goods entering the customs territory of the EU from a third-country (including GB) are, by default, subject to the application of customs duty and other taxes unless entitlement to a relief is proven.

Article 203 sets out the conditions for claiming RGR. Goods can be exported from the EU to a third country (e.g., GB) and reimported into the EU without payment of Customs Duty, provided all RGR conditions were met. The goods must have been originally exported from the EU, must not have been altered and must be reimported within three years of export. For imports to benefit from the duty relief treatment, the importer must be able to provide the evidence required to prove entitlement for RGR. j. Article 203(4) UCC provides that "where Union goods have lost their customs status as Union goods pursuant to Article 154 and are subsequently released for free circulation, paragraphs 1, 2 and 3 shall apply". k.

Article 203(3) deals with situations where end-use of the goods at issue is relevant This is not so here. Goods that moved to GB from elsewhere within the EU prior to MoD would not qualify for RGR as they were not exported. Their move to GB (whilst it was still a Member State) was an intra-Community movement. l. Prior to the end of the transition period, the EU Commission published a Guidance Note on the application of reliefs post- Brexit ("Guidance Note") outlining, inter alia, conditions under which RGR could be granted for Union goods returning to an EU Member State that had moved from there to GB prior to the MoD.

The Guidance granted a special facilitation based on Article 203(1) UCC and applied in all Member States to enable goods returning to the EU from GB post- Brexit to avail of RGR once specified conditions were met. It provided at para 5.4:

"Where Union goods are brought from the Union to the UK before the end of the transition period and where then such goods move back to the Union after the end of that period, the provisions on returned goods referred to in Article

203 UCC apply if the economic operator can provide evidence that the Union goods: were transported to the UK prior to the end of the transition period; and return in an unaltered state in accordance with Article 203(5) UCC and Article

158 UCC DA." m. The Guidance confirmed that RGR could be granted for goods, including vehicles, returning to Member States post-Brexit that moved to GB prior to the end of the transition period, provided that the usual RGR conditions were proven; i.e., the vehicle moved from the EU to GB before the end date (deemed export), it returned within three years, was unaltered and supporting documents were provided showing entitlement to the relief. The claim to RGR must be made within three years of the original export (or in this case within three years of the movement to GB). The three-year rule was specifically addressed by the Guidance at para 5.4:

"… the end of the transition period is not one of the special circumstances that would allow exceeding the three-year period referred to in Article 203(1) UCC." n. Revenue must apply RGR in line with the Guidance and with the application of the relief throughout the EU. It cannot take a unilateral decision to allow an extension to the three-year limit. In providing such a facilitation for goods coming from GB post Brexit, it would have been incongruous for the EU and Member States to apply the three-year limit from the end of the transition period as this would have provided for a far greater facilitation for goods in GB returning to the EU than would apply under then normal legal provisions to all other instances, which would have been discriminatory. o.

The Guidance does not take ''precedence" over the UCC but, if it were not for the Guidance, RGR would not arise for any goods in GB at the MoD. p. The Appellant’s submission that article 203(1) and/or (4) of the UCC ought to be interpreted in a sense that allows "goods which were in free circulation in the United Kingdom (…) on the day before the UK exited the European Union to benefit from RGR" is correct and the facilitation referred to already permitted goods in free circulation in GB on the day before GB exited the EU to benefit from RGR, subject to compliance with certain conditions.

These conditions include satisfying Revenue of entitlement under the three-year rule. The Appellant failed to comply by demonstrating the required entitlement. q. The Respondent observed that the Appellant's submission that, when GB left the EU, all goods on its territory were 'taken out' of the customs territory of the Union within the meaning of Article 154 was a bald assertion, unsupported by its submission save for an unfounded contention that Mr Fitzpatrick’s factual evidence on behalf of Revenue supported that interpretation. Article 50 TEU and the relevant provisions of the Withdrawal Agreement comprise the primary law and legislative provisions that resulted in the motor vehicles the subject of this appeal losing their Customs Union status by operation of law.

It cited, by way of analogy, the CJEU's judgment of 15 June 2023 in Cases C-499/21P Silver and Others v Council, C- 501/21P Shindler and Others v Council, and C-502/21P Price v Council, holding that the loss of the status of citizen of the EU for British citizens, and consequently the loss of the rights attached to that status for them, was an automatic consequence of the sole sovereign decision taken by the UK to withdraw from the European Union, rather than the Withdrawal Agreement or the Council's decision to conclude it on behalf of the EU. r.

Customs declarations submitted via AIS are legally binding returns similar to any other return to Revenue. Article 15 UCC provides for the delivery of information to the customs authorities, which includes electronic information: any person lodging a customs declaration must provide the Customs Authority with "all the requisite documents and information, in an appropriate form, and all the assistance necessary for the completion of those formalities or controls". s. The article also stipulates that the person lodging the declaration is responsible for:-

(a) The accuracy and completeness of the information given in the declaration, notification or application; (b) the authenticity, accuracy and validity of any document supporting the declaration, notification or application; (c) where applicable, compliance with all obligations relating to the placing of the goods under the customs procedure concerned, or to the conduct of the authorised operations. Such proof was not provided in this case. t. Article 163 UCC reinforces the declarants’ burden of responsibility and their obligation to possess the supporting documentation when a declaration is lodged. u. Article 252 of the Implementing Regulation sets out the information required to prove entitlement to RGR in accordance with Article 203(6) UCC:

Article 48 UCC pertains to "post-release control' and provides: "For the purpose of customs controls, the customs authorities may verify the accuracy and completeness of the information given in a customs declaration and the existence, authenticity, accuracy and validity of any supporting document and may examine the accounts of the declarant and other records relating to the operations in respect of the goods in question or to prior or subsequent commercial operations involving those goods after having released them. Those authorities may also examine such goods and/or take samples where it is still possible for them to do so. Such controls may be carried out at the premises of the holder of the goods or of the holder's representative, of any other person directly or indirectly involved in those operations in a business capacity or of any other person in possession of those documents and data for business purposes." v. Rejecting the submission that the Respondent’s request for documentation was "unnecessary and irrational", the Respondent submitted that the Appellant has not provided the requisite documentation to support its claim to RGR as required under article 203(6). It only ever provided proof of registration in GB (V5 Certificate) and the VIN. RGR was only allowed for motor vehicles returning to the EU, where the declarant could provide the following documentation: i. Proof that the vehicle could fulfil the RGR conditions regarding the vehicle having been in free circulation in the EU, having moved from the EU and returned unaltered to the EU within a three-year timeframe. ii. The date of the vehicle’s original movement to GB would be earlier than the date of registration in GB so date of registration in GB is not satisfactory evidence of when the goods moved to GB. iii. Documentary proof that the vehicle moved to GB prior to 31 December 2020 such as: (i) the trade documents related to the shipping/transport of the vehicle; or (ii) Where the vehicle was manufactured in the EU within three years of its reimportation into Ireland, any official document containing the following information could be provided as proof that the conditions for claiming returned goods relief were fulfilled:

- the date the vehicle was manufactured

- the details of the factory where the vehicle was manufactured

(must be within the EU), not head office of its manufacturer;

- the chassis number; and

- the description/technical details of the vehicle.

w. The VIN provides information relating to a vehicle including its model year and the plant at which it was produced. However, a VIN, on its own, does not provide sufficient proof of the manufacture date or, in many cases, the place of manufacture: i. The car’s model year does not necessarily confirm its year of manufacture and it certainly does not confirm the date of manufacture. ii. Nor is the manufacturing plant established by a VIN. For example, some VIN numbers use the city where the company's European headquarters are located not the city where the plant is located.

Accordingly, Revenue could not accept the VIN as a standalone proof. It would always need to be accompanied by either a Certificate of Conformity or an Oasis Vehicle Enquiry Report, showing the car’s date of manufacture and, in many circumstances the plant at which it was manufactured.

x. The Respondent submitted that, in accordance with settled case-law which it cited, where the wording of an EU law provision is clear and precise, there is no need for a contextual or teleological interpretation. In the present case, there is no need, in any event, to go past a literal interpretation, as the provisions are clear. There is no ambiguity in the wording of the Article 50(3) TEU or the relevant provisions of the Withdrawal Agreement. These provisions fall to be interpreted in a literal sense - EU law ceased to apply to GB from the end date/time provided further to Article 50(3) TEU in the Withdrawal Agreement.

The goods lost their Customs Union status at MoD under the TEU and Withdrawal Agreement rather than under the provisions of the UCC. y. The Respondent does not accept that the vehicles are entitled to RGR, under a literal interpretation of Article 203(1), as they were never exported from the EU (they moved to GB when GB was a member of the EU, so no export took place). Revenue (and the Commission) have not, in any event, applied a literal interpretation to Article 203(1). Instead, and in order to apply the same type of arrangements to RGR on goods returning to the EU from GB that apply in respect of goods returning to the EU from other third countries, Revenue (and the Commission) have applied a "normative" interpretation of Article 203(1) UCC in order to provide for a scheme allowing RGR on goods returned to the EU from GB, although same is not expressly addressed in the UCC. z.

The Respondent noted that the Appellant’s contention that double taxation would apply if Customs Duty was imposed on the goods’ return to the EU from GB post- Brexit was not argued before the Commissioner and failed to recognise that the Respondent (and the Commissioner) were ready to grant RGR to the returned goods, provided the Appellant submitted the required documentation to show entitlement to such relief. The Respondent noted that it had never stated that goods had to be moved from GB into the EU prior to the end of the transition period.

Such an approach would not have made any sense. That scenario was not raised before the Commissioner and had never been put to the Appellant by the Respondent. It was unfortunate that the Appellant's legal submissions seem to imply that the Respondent adopted such an approach. It had always been the Respondent’s position that the three-year period ran from the date the goods were originally moved to GB and expired three years later. aa. Revenue's position is that Revenue (and all Member States) do allow RGR to be claimed for 2018, 2019 and 2020 vehicles, subject to appropriate supporting documentation being provided.

However, the year of manufacture is not the deciding factor. The date on which the claim to the relief is made must be within three years thereafter. bb. Revenue does not accept the Appellant's arguments that RGR should be allowed irrespective of the year the car was originally moved to GB as this would apply very different conditions to vehicles returning to the EU from GB than those applied to vehicles returning to the EU from other third-countries. Imports from all third countries require the same specified proofs, and no enhanced/increased criteria applied to imports from GB claiming RGR.

This ensures a level playing field across all the EU’s third-country trade partners.

Analysis

52. A few observations may be helpful at the outset: a. The Customs Union is an exclusive EU competence. Each Member State is bound by, and must apply, the UCC. b. It seemed to me that many of the Appellant’s submissions, particularly in respect of article 203 and the Guidance, mischaracterised the Respondent’s position and I will generally not prolong this judgment by dealing with such “straw men”.

c. It appears from the Determination that many positions adopted by the Appellant were not grounded on evidence but were assumptions unsupported by the evidence. The Appellant thus ignored both its evidential burden and its legal responsibilities and its onus of proof which it bore in these proceedings. d. Many arguments advanced were circular, such as that it was unreasonable to require the Appellant to provide information on the basis that it was not the importer. By acting as a customs representative, the Appellant accepted responsibilities under the UCC and the other relevant provisions. By failing to specify that it was acting as a direct representative, it accepted that the responsibilities and consequences which that omission implied. It cannot resile from those obligations. Notwithstanding the difficult circumstances at the time (which affected the entire sector), as an experienced customers representative, the Appellant cannot disavow its obligations. Nor can its failure to adequately recruit, train and manage its staff justify any neglect of its obligations under EU law. e. Mr Libreri’s evidence included unsubstantiated assumptions and broad assertions as to the meaning of the legal requirements. I do not accept that he sufficiently justified his sweeping assumptions, nor do I agree with his legal interpretations (scarcely a matter for evidence in any event). I was underwhelmed by other arguments in his testimony. For example: i. The Appellant’s conditions of carriage govern its contractual relationship with its clients but do not obviate the Appellant’s responsibility to ensure the accuracy and completeness of its filings in compliance with the relevant provisions, nor do they mitigate the consequences of the Appellant’s disregard of those legal obligations.

ii. The observation that the Appellant was not required to produce empowerment documents on every occasion misses the point. For reasons of practicality, the regulations do not require customs authorities to check empowerment documentation on every occasion - taking customs representatives on their word as they are trusted – and required

- to have the documents to hand and to produce them immediately if required. However, the representative must always maintain such documentation, a responsibility shirked by the Appellant. The fact that it later claimed that such documentation was available but again generally failed to produce it does it even less credit. iii. I disagree with the suggestion that the Appellant can discharge its burden of proof on the basis of broad assumptions unsupported by sufficient evidence to justify them (such as, in respect of the Classification issue), that the respondent should assume that the mandatory “unaltered state” requirement was met as, the Appellant argued, purchasers would require them in their original state and such a state could therefore be assumed. It was also unsatisfactory for the Apellant’s witnesses to simply assert that it was "obvious" or “not too much of a stretch” to assume that vehicles were in their original state.

Interpretation of EU law Provisions

53. While I largely agree with the Appellant’s summary of principles of interpretation of European law, I am not satisfied that those principles advance its case. The meaning of the provisions, including articles 154 and 203, is readily ascertainable “through the lens of literal interpretation” - the wording is clear and precise. No uncertainty or ambiguity arises. Nor, however, would a contextual or teleological interpretation assist the appellant in any event.

54. While the Appellant rightly noted the need to consider "characteristic features of Community law and the particular difficulties to which its interpretation gives rise", particularly since some legal concepts may have particular meanings in Community law, I do not see how those principles assist the Appellant. It did not identify any autonomous concept of EU law, the meaning of which differs from its Irish meaning. The Commissioner’s thorough analysis of the legislation duly placed the relevant Community law provisions in context and interpreted them in light of Community law as a whole. Accordingly, although I broadly agree with the principles of interpretation as summarised by the Appellant, I am not convinced that they justify the various positions which it has adopted since the original intervention by the Respondent. For reasons outlined below, there is no need (or basis) to depart from the clear and unambiguous wording of relevant provisions, including article 154.

Applicability of Article 203(1)

55. The entitlement to RGR primarily arises under article 203(1). As the Appellant observed, its primary purpose is to restore the “customs status quo ante” of goods which left the Union before being brought back, relieving such returned goods of double taxation and avoiding levying third country customs duties on goods originating within the Union. However, goods do not qualify under article 203(1) in the absence of an “export” to GB. It was common ground that, by definition, no “export” from the EU to GB could have occurred pre-Brexit. Accordingly, article(1) does not avail the Appellant.

The Guidance

56. The Appellant’s argument, that the Commissioner was wrong to require the establishment of a pre-Brexit “export” to GB in order to invoke article 203, mischaracterises the Respondent’s position. All parties agree that pre-Brexit movements of goods into GB from other member states did not constitute exports, a fundamental article 203(1) requirement. However, the Guideline adopted a “lenient” interpretation, effectively treating returning goods as if the original transfer to GB had been an export and allowing RGR if the conditions (including the 3 year period) were otherwise met.

57. The Appellant argues that the Respondent is not entitled to adopt such an interpretation. However, as the Commissioner noted, without such leniency the Appellant could have no entitlement under article 203(1) in any event - unless such pre-Brexit transactions are treated as quasi-exports there is no export to ground an article 203(1) application for RGR on re-entry. The Appellant has no basis to seek RGR under Article 203(1) in respect of the goods in GB at MoD, but for the “leniency” offered in the Guidance.

58. Although the Appellant's submissions mischaracterised the Respondent’s position, it was explained in its 2021 correspondence, including an email stating that:

"as we have previously explained, on 31 December the UK left the customs territory of the Union. This had the effect of deeming all goods, not under customs supervision of non-Union goods. This is not covered under article 154 UCC, rather the fact that the UK has left the customs territory of the Union is the point at which the Union status is lost. Article 154 UCC has no relevance here whatsoever. If we were to take a strict interpretation of the UCC, article 203 states that returned goods relief can apply to "non-union goods which, having originally been exported as Union goods from the customs territory of the Union, are returned to that territory within a period of three years…" If this was strictly applied by the commission goods in the UK before 31 December 2020 wouldn't qualify for Returned Goods Relief as they weren't exported from the customs territory of the Union. However, in the guidance, the commission have shown some leniency and goods which move to the UK before 31 December 2020 and comply with the conditions of Returned Goods Relief can be reimported into IE claiming the relief if all conditions are met. The goods must be imported to IE within three years of the date the goods moved from the EU to the UK. I'm aware that my colleagues in the motor transport and utilities branch have been in correspondence with you and I would strongly urge that you address the questions I posed to you in the correspondence of 10 March 2021. Again, to be clear as per the guidance from the European commission, the applicable date of export to Returned Goods Relief is the date the goods were moved to the UK and not the date of the end of the transition period. The fact that Returned Goods Relief is being permitted by the commission in this instance is itself a facilitation."

59. I agree with the Commissioner that the guideline was an EU concession, treating goods which were moved from one EU jurisdiction to GB prior to the MoD as if they had been exported at the time they were moved. It was reasonable (and beneficial to the owners of such goods) to treat them on the same basis as goods exported to third countries. However, I see no basis for the interpretation for which the Appellant contends, deeming all such goods as having been exported as at the MoD. I agree that if the Guidance is invoked (and without invoking it article 203(1) can have no application here) the availability of RGR must be determined by reference to the (pre-MoD) date on which the goods were originally moved to GB. To qualify, the goods had to be “re-imported” into the EU within 3 years of that date. The Appellant must establish all elements of article 154, including when the goods were moved to GB from other member states. The three years runs from then. Since I do not agree that the article 203 period commences at MoD, it follows that the Respondent’s requests for evidence as to when the goods originally entered GB were appropriate; the Appellant should have provided the information.

60. The Respondent had to apply RGR consistent with the approach throughout the EU - it could not take a unilateral decision to extend the three-year limit to run from the MoD. I agree that such a post-Brexit facilitation for goods coming from GB would have been incongruous in any event - it would have provided greater facilitation for goods returning to the EU from GB than for other third countries. That would have been discriminatory.

Articles 203(4) and 154

61. Although the respondent objected that article 203(1) could not apply in the absence of an "export" or as permitted by the guidance note, that may not be determinative. While an export is required pursuant to article 203(1) different requirements apply under article 203(4). In that case the issue is whether the vehicles lost their customs status as union goods pursuant to article 154. That provision does not refer to an export transaction - the issue is whether the vehicles were “taken out" of the union customs territory at MoD. It is common ground that the vehicles (like all goods in GB) were in free circulation with Union goods status until MoD when they lost that that status. Although I do not agree with the characterisation of Mr Fitzpatrick’s evidence in the Appellant’s submissions, I agree that the change of status occurred due to operation of law (the Withdrawal Agreement and associated legislation). I do not agree that that change in status comes within article 154 or that it is correct to describe the vehicles as "taken out of the customs territory" when the UK left the EU.

62. That is the fundamental difficulty for the appellant - Article 154 renders Union goods non-Union goods when they are “taken out of the customs territory of the Union”. I cannot see a material difference between the phrase “taken out” and “moved”, the term used in the predecessor provision. Neither is an apt description of what happened at the MoD, when all goods in GB became non-Union goods because GB was no longer part of the territory. The plain language of the articles does not fit with the Appellant’s claims.

63. I do not consider that articles 154 and 203(4) apply to the loss of customs status by operation of law at the MoD when the UK quit the EU because article 154 concerns the loss of customs status of union goods taken out of the territory. That is not what happened. There was no relocation of the goods. The territory changed but article 154 did not address that scenario.

64. The Appellant’s submissions would effectively mean that all goods in GB were deemed to have been taken out of the EU at the MoD, enabling them to qualify for RGR if returned to the EU within 3 years, a surprising outcome which would require express language to sustain it. However, it is not a tenable construction of articles 154 or 203,the Withdrawal Agreement, or the other provisions cited. There is no indication in the Withdrawal Agreement or anywhere else that the MoD should be regarded as some sort of deemed mass export or “taking out”, by operation of law, of all goods in GB.

65. In terms of the ordinary and natural interpretation of article 154 it is not apt to describe the vehicles as having been "taken out" of the union at the MoD. There is no suggestion the vehicles physically moved. The extent of the territory changed by operation of law and the very detailed and expertly negotiated Withdrawal Treaty did not suggest that article 154 should apply in that scenario. If it had been intended that Brexit should have been regarded as "taking out" all goods which were in the United Kingdom from the customs territory of the union so as to render such goods eligible to avail of RGR for three years thereafter, then this would have been expressly stipulated.

66. The interpretation urged on me by the Appellant would effectively require me to rewrite provisions for teleological reasons but there is no basis to do so since the provisions are clear. Furthermore, subsequent development such as the Withdrawal Agreement appear consistent with the plane and the ordinary interpretation of articles 154 and 203.

67. I agree that Brexit was unprecedented and scarcely envisaged by the drafters of the UCC in 2013. If they had been so prescient, then more specific provisions would have been rather more likely. However, that does not necessarily determine whether article 154 applies. Sometimes unexpected events occur after a contract is agreed or an enactment promulgated and the question then arises as to how it falls to be dealt with under the provisions event if, the drafters of the relevant provisions may not have turned their mind to the particular scenario. In this case, it is common ground that the goods have lost their customs status at MoD. The issue is whether this was “pursuant to article 154", which could trigger a RGR claim under article 203(4). Even if Brexit was not anticipated when article 154 was promulgated, it could have been captured if the provision had used language to make clear that any loss of customs status would trigger the provision (or at least any such loss by operation of law). However, the language actually used “taken out of the customs territory" was directed at physical movement of goods and I do not see how it could encompass the circumstances in which the vehicles’ customs status actually changed at the MoD.

The direct representation issue

68. The Appellant never satisfactorily explained its failure to comply with the mandatory article 19 requirements that a representative should state whether its representation is direct or indirect and should be in a position to evidence of empowerment on request. I agree with the Commissioner that, particularly in view of article 19 and the onus on the customs representative to complete representation details, the Respondent was right to treat the Appellant as the importer where it failed to otherwise complete the representation section of the import declarations.

The reasonableness of the Respondent’s requests and the adequacy of the Appellant’s responses

69. I agree with the Commissioner’s observations as to article 15 and that the Appellant has generally failed to comply with its article 15 obligations, even at this stage, despite: (i) having been afforded ample opportunity; (ii) its duty, including under article 163 to have supporting documents required to prove its declaration in its possession at the time of lodging such declarations; (iv) the evidence falling far short of establishing that the Appellant was in an exceptional situation compared to other operators as provided for under article 120(2);

70. There is no basis to describe the Respondent’s demands as unnecessary or irrational. The Appellant, as the person lodging the declarations, was responsible for:- (a) The accuracy and completeness of the information given therein; (b) the authenticity, accuracy and validity of any document supporting them; (c) compliance with all obligations relating to the placing of the goods under the customs procedure concerned, or to the conduct of the authorised operations and that such proof was not provided.

71. I must also record my concern at the Appellant’s blithe response to the Respondent's observation that most of the Appellant GBPO claims were based on U116 (effectively but apparently erroneously confirming the availability of document documentary evidence) was not to explain the basis on which a litany of declarations appear to have been made without sufficient care. Instead, it was asserted that "such customs declarations can be amended". While amendments may be appropriate and legitimate where bona fide errors are made, it is clearly not satisfactory for any party, particularly a professional representative, to enter information wrongly claiming to be in possession of documentation necessary to support the relevant returns. Nor is it a satisfactory explanation to note the ability to amend such declarations if any such issue should emerge. The Respondent must be able to rely on the integrity of such returns from customs agents and to expect them to take all reasonable steps to ensure that accurate and reliable returns are filed in the first place. Nor was it an adequate explanation for the Appellant’s failure to produce documents in accordance with its obligations for it to say that such a requirement would be “onerous”. If it had made appropriate enquiries of its customers and completed the returns appropriately in the first place, the requirements would not have been onerous, and the issues would not have arisen.

72. I particularly disagree with the contention that the requests for information were unreasonable and illogical because only the importer would have such information and, under article 54, the responsibility for the veracity of a GBPO claim may depend on the importer’s knowledge. This circular argument is flawed for at least three reasons: a. Firstly, it ignores the consequences of the Appellant’s failure to make clear in its filings that it was only acting as a direct customs representative. b. Secondly, it ignores the fact that, by selecting option U116 in the drop-down menu, the filings did not rely on the importer’s knowledge but the Appellant’s representation that it was in possession of the necessary documents at the time of the declarations, documents which have never been forthcoming. c. Thirdly, the Appellant could have had any legitimate basis to claim RGR on the “knowledge” basis in any event – it does not itself claim such knowledge or event to have confirmed that its clients did so – the Appellant’s apparent assumptions fall far short of what is required in that regard.

The Article 104 Issue

73. I do not agree that liability for a customs debt is contingent upon the customs authority complying with article 104 or that the failure to comply with article 104 would extinguish any such liability. Whatever consequences may or may not arise under article 104, they do not include the extinction of a taxpayer liability which would otherwise arise – such a bizarre interpretation would be at odds with the object of the UCC, including the adoption of a harmonised EU wide approach to collecting customs duty. The Appellant’s argument is akin to a claim by a debtor of a company in respect of an undisputed debt which was material to the company’s financial position that, if the company failed to properly reflect the debt in its books, records and financial statements (in accordance with the Companies Acts and accounting standards), the debtor’s liability would be extinguished, an illogical and undeserved windfall. That does not follow. A company and its officers might well face consequences for their failure to comply with applicable accounting and reporting requirements, but the debtor’s liability would stand. The same is true here, although in any event I note the circumstances which explain the delay on the Respondent’s part and the Appellant’s own contribution to that state of affairs.

Equity

74. I agree that, for the reasons outlined in the determination, there is no basis to remit the debt in the interests of equity. The Appellant was the author of its own misfortune for the reasons identified in the Determination.

Other Observations

75. I have concerns as to the Appellant’s position. The situation is its responsibility. It claimed GBPO over most vehicles in circumstances in which it should have known that it had no basis to do so. The evident untenability of its position was demonstrated by the speed of its Damascene conversion when the Respondent raised the issue. It is even more concerning that it did not mend its hand immediately and comprehensively. Instead, it kept digging, claiming RGR for all vehicles and Classification for a few, without being in possession of the necessary information and documents.

76. As a professional customs representative, and notwithstanding undoubted Brexit and pandemic difficulties, it is not acceptable for the Appellant to blame its own inexperienced staff, particularly as it spurned opportunities to mend its hand very fairly offered by the Respondent. The Appellant appreciated its obligations, including the consequences of failing to limit its role to that of a direct customs representative. If, due to poor management, training or supervision, its staff failed to comply with the requirements, it must accept those consequences.

Conclusion

77. Ultimately the situation is the result of Brexit fundamentally changing the customs relationship which had prevailed between the UK and the EU since 1991. Specifically, the Withdrawal Agreement provides that, save for the transition arrangements the law of the Union ceased to apply to the United Kingdom. The MoD is the relevant point for present purposes. Although it is clear from the Withdrawal Agreement that goods in GB could no longer be regarded as being Union goods after the MoD, there is nothing in the Agreement to support the argument that the MoD should be regarded as some sort of deemed export of all goods in GB (including these vehicles) for the purposes of articles 154 and 203. Indeed, the provisions actually dealing with ongoing customs procedures, such as article 4, imply the opposite intention. The consequences in respect of the status of GB goods must be seen as, to borrow the language of the CJEU in Silver v Council of the European Union at para 45,a consequence of the UK’s sovereign decision to withdraw from the European Union. The consequences in terms of liability for duty in respect of the vehicles fall to be determined on the basis of the relevant provisions, which are clear, and the Appellant has not discharged the burden of proof to establish that the original notification of debt or the Commissioner’s decision were wrong.

78. The Commissioner was right to conclude that the Appellant has not met its obligations under articles 54 and 56 of the TCA in respect of a GBPO claim. It spurned numerous opportunities to furnish information and documentation required to confirm either that it was a customs representative rather than importer or the basis for the GBPO and RGR and Classification claims (save in respect of eight vehicles). The Commissioner was right to conclude that: (a) it had not established that it was acting as customs representative rather than importer (rendering it liable for any tax due on the importation); and (b) the claims to GBPO and RGR or for Classification had not been substantiated. The proofs for RGR, GBPO and the Classification but the Appellant failed to meet them. The Commissioner was also right to conclude that the Respondent was correct to impose the duty. I also agree that actual proofs are generally required, and that assumptions would rarely be acceptable unless, perhaps, a sufficient evidential basis was established to demonstrate the reasonableness of the particular assumption, which was not the case here.

79. I would answer the original question posed in the case stated on the basis that the Commissioner was correct in law in finding that the goods did not lose their customs status within the meaning of article 154 when the transition period ended on 31 December 2020. The second question has been abandoned by the Appellant. I would answer the two additional questions as follows: a. The Commissioner was correct in law in finding that the Appellant is not entitled to RGR pursuant to article 203(1) and/or (4) of the UCC. b. The decision of the Commissioner in respect of finding the Appellant had lacked the requisite proofs to establish that it was entitled to RGR pursuant to article 203(1) and/or (4) of Council Regulation was not irrational in the circumstances.

APPEARANCES

Pearse Sreenan SC/ CJ Sreenan BL, instructed by Henry D Keane & Co. Solicitors, for the Appellant Noel J. Travers SC/ Shelley Horan BL, instructed by the Revenue Solicitor, for the Respondent.