David Kirkaldy v Her Majesty's Revenue & Customs

Decision date: 10 November 2009

Neutral citation: [2009] UKFTT 301 (TC)

Overall AI summary confidence: medium

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Short overview

This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.

AI confidence in this short overview: medium

This appeal concerned an amended Excise Duty assessment for use of rebated (red) diesel in two vehicles. The Tribunal accepted HMRC's evidence, inferred prolonged use of rebated fuel from 100% contaminated samples, upheld HMRC's estimated mileage and consumption (less allowed receipts), and dismissed the appeal, confirming duty of £2,845 for the period 1 August 2005 to 28 November 2007.

Ratio decidendi

This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.

AI confidence in this ratio decidendi summary: medium

Where a vehicle's running tank yields a fuel sample showing 100% rebated (red) diesel and the taxpayer gives no credible contrary account, it is reasonable to infer prolonged use of rebated fuel and to calculate duty due by applying HMRC's reasonable estimates of mileage and consumption, allowing credit for proven purchases of duty-paid fuel.

Obiter dicta

This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.

AI confidence in this obiter dicta summary: low

The Tribunal noted HMRC's practice of taking fuel samples in the presence of a police constable and commented on procedural fairness in adjourning hearings when a witness cannot attend; these remarks were observational and not treated as determinative legal principles.

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