Notice 12A: Seizure of Goods by UKBA / HMRC

We recognize the need of contacting HMRC and the UK Border Force as soon as possible in order to minimize the issues and financial distress that our clients may face if their items are held or confiscated. If your goods have been detained or seized and you want assistance, please contact our expert team at [email protected].

This article gives important advice and information about what to do if you have had something seized by the HMRC or Border Agency. It applies to the seizure of things, such as goods and vehicles, under section 139 of the Customs and Excise Management Act 1979. It does not apply to seizures under any other law.

Details of the things seized from you will be listed on one of the following:

• a seizure information notice handed to you or your agent if the thing was seized in your or their presence — the reason for the seizure should have been explained to the person present at the time of seizure
• a notice of seizure sent to you if you or your agent were not present when the thing was seized

The information in this article covers seizures by HMRC and Border Force because the process is the same even though they are separate government organisations. However, it gives different contact details for HMRC and Border Force. It is important that you contact the correct organisation, depending on who seized something from you, so your case can be dealt with promptly.

Your options if you disagree with the seizure

If you have had something seized by HMRC or Border Force and you do not accept there was a legal right to seize it and you want them to consider returning it, you have 3 options. You can:

(a) challenge the legality of the seizure by sending a notice of claim to HMRC or Border Force,

(b) write to HMRC or Border Force asking for the thing to be returned to you even if you accept it was seized legally, this is called restoration,

(c) do both of the above at the same time by challenging the legality of the seizure and asking for the seized thing to be returned in the meantime.

The legality of a seizure is a matter that is dealt with before a court by way of condemnation proceedings, usually by a magistrate’s courts, or in Scotland the Sheriff’s court. Restoration is decided by either HMRC or Border Force but if you do not agree with their decision you can ask for a statutory review.

If you choose option (c), the 2 processes may be dealt with at the same time but in separate ways. They cannot be combined because magistrates’ courts and tribunals have different areas of authority. If you do not challenge the legality of the seizure by submitting a notice of claim, you will not be able to challenge it later at the tribunal.

The import or export of any item that requires a permit under the 1973 Convention on International Trade in Endangered Species (CITES) is now creating much consternation. Our litigation team has successfully resolved numerous cases in which individuals and businesses might potentially lose enormous amounts of money as a result of seizures and failure to secure the necessary Import Permits before the items arrived in the UK. Our team of experts can help you in contacting Border Force or HMRC about the seized items and Advise you on the legality of the seizure and whether it should be challenged.

Challenging the legality of a seizure

If you believe something should not have been seized, you can challenge the legality of the seizure. That will lead to a court hearing where HMRC or Border Force has to prove the seizure was lawful. The burden is on the claimant to prove goods are duty paid.

You may believe that HMRC or Border Force had no legal right to seize something because, for example:

• excise goods brought into Northern Ireland from an EU country were for your own use or to be given away
• goods imported into Great Britain (England, Scotland and Wales) from outside the UK, or into Northern Ireland from outside both the UK and the EU, were within your statutory allowance
• duty has been paid on UK excise goods that are liable to duty
• goods were not prohibited or restricted
• a vehicle running on duty-rebated fuel (such as red diesel) was allowed to use it

Challenging the legality of a seizure can take several months from when you send HMRC or Border Force your notice of claim to when it is heard in court. The court hearing itself usually lasts less than a day.

Who can challenge the seizure?

Any person can challenge the legality of the seizure but the person who does that (or their solicitor) must swear an oath at court that they owned the thing at the time of seizure. As the owner you may ask someone else to send a notice of claim for you but it must include your signed authority for them to act on your behalf.

Recently, our firm has assisted various companies in restoring consignments imported from Asia. We constantly question the legitimacy of the seizure because the products were to be sold legally in the catering business.

All challenges to seizure made by Border Force must include an authority form. Failure to provide a signed authority may cause delay in Border Force giving you a decision. There’s an example of an authority form you can use. Where some of the seized things are owned by different people, each person who wants to challenge the seizure of their items must send a notice of claim to HMRC or Border Force within the time limit.

If you want to write a joint letter each person must:

• sign the letter
• give their full name and address
• state which of the seized things their challenge refers to
• use continuation sheets where necessary to include all relevant information

How to challenge a seizure?

You can challenge a seizure by sending a notice of claim to HMRC or Border Force, depending on who made the seizure, setting out the reasons for your challenge. In legal terms, by making a notice of claim you are asking HMRC or Border Force to start court action known as condemnation proceedings. These proceedings decide whether something was liable to forfeiture and seized lawfully by HMRC or Border Force. The proceedings do not involve court action against any person to decide if they are guilty of an offence in relation to seized things, such as smuggling.

A notice of claim letter may be used to challenge the seizure or you may challenge it in your own words. If the seizure is challenged in your own words, it must include clear reasoning and explanation as to why HMRC or Border Force was wrong to seize the goods.

It is extremely important that the notice of claim is sent to the correct address. If not, there could be a delay in HMRC or Border Force dealing with the challenge against the seizure. For both HMRC and Border Force claims send as much information as you can so your notice of claim is referred to the correct person to deal with your case. It is particularly important that you write in English wherever possible and include any case reference numbers on the notice of seizure or seizure information notice as these will help identify the goods and ensure your notice of claim is directed to the correct place.

Time limit to challenge the seizure

HMRC or Border Force must receive your notice of claim within one calendar month of the date of seizure shown on the seizure information notice or the date shown on the notice of seizure. If HMRC or Border Force does not receive a notice of claim within the time limit, you will not be able to challenge the legality of the seizure.

The time limit is set by the law and there is no provision for late challenges. This means that unless the legality of a seizure is challenged within the one month time limit, ownership will pass to HMRC or Border Force (depending on who seized the goods). There is no other way to challenge the legality of a seizure even if you later decide to appeal against a duty assessment or wrongdoing penalty.

The one calendar month period starts on the day after the seizure and ends at 11:59pm on the last day of the one month period, irrespective of how many days are in the month. For example, if the seizure occurred on the 30 June, the calendar month starts on 1 July and ends at 11:59pm on 31 July.

What happens when HMRC or Border Force receives a notice of claim?

When HMRC or Border Force receives a notice of claim, they apply to the appropriate court for condemnation proceedings, which is the process for dealing with a claim against a seizure. HMRC or Border Force will apply to the court as soon as possible, in most cases within 6 months, in England, Wales, Northern Ireland and Scotland. The court then sends you details of when and where the hearing will take place. The type of court and the document you receive with details of the hearing varies, depending on where in the UK the goods were seized. Condemnation proceedings for things seized in:

• England or Wales are usually held in a magistrates’ court and you will receive a summons
• Northern Ireland are held in a magistrates’ court and you will receive a notice of application
• Scotland are usually held in a sheriff’s court and you will receive a writ

What happens if you are successful/not successful

If the court decides in your favour, the seized thing will be returned to you. If HMRC or Border Force has already disposed of the seized thing, the owner has the right to ask for compensation of an amount equal to the:

• sum paid for the goods in question
• proceeds of sale (where HMRC or Border Force have sold the goods in question)
• market value of the goods at the time of seizure

If the court finds in favour of HMRC or Border Force, it will make an order forfeiting the seized thing to them. The court may also order you to pay their costs.

Request for restoration of seized goods

The process of returning a seized thing to someone is called restoration. HMRC and Border Force normally only restore a thing to its rightful owner but they will take arrangements with third parties into consideration.

You can ask HMRC or Border Force to consider returning the seized thing even if:

• you accept it was legally seized
• you have already challenged the seizure and you are waiting for a court hearing
• the time limit for challenging the seizure has expired and ownership of the thing has passed automatically to HMRC or Border Force — this must be within a reasonable period

Your goods will not be restored if your reason for that request is that things were not legally seized or, in the case of excise goods, they were imported for your ‘own use’. You should challenge the legality of the seizure instead bearing in mind the one calendar month time limit for doing that.

How to request for restoration

You should ask for restoration of the seized goods in writing.

To help HMRC or Border Force deal with your request quickly, your letter should:

• be written in English
• include your full name and address
• quote any reference number shown on the seizure information notice or notice of seizure
• explain why you think the thing should be restored to you, giving the full circumstances and enclosing any available evidence to support your request
• include proof of ownership of the thing (such as purchase receipts)

HMRC or Border Force will normally acknowledge your letter within 10 working days of receiving it.

Time limit for requesting restoration

There is no time limit in law although HMRC or Border Force usually expects to receive a request for restoration of a seized thing within one calendar month of the date of seizure or the date on the Notice of Seizure. 

HMRC and Border Force will dispose of perishable goods as quickly as possible. They usually begin disposing of non-perishable things 45 days after the date of seizure unless the legality of the seizure is challenged or they receive a restoration request. In those cases they usually keep the goods until the challenge or restoration is decided.

f the seized thing has been destroyed, HMRC or Border Force cannot restore it to you but they will usually offer you an appropriate payment instead. This may be an amount equal to the sum paid by you for the goods in question or an amount equal to the proceeds of sale (where HMRC or Border Force have sold the goods in question) or an amount equal to the market value of the goods at the time of seizure and not including any additional compensation (for costs, travel expenses, interest).

What happens when HMRC or Border Agency receives a restoration request

When HMRC or Border Force receives a request for restoration, they consider all the facts and decide either to offer or refuse restoration.

If they offer to restore a seized thing, it will normally be on payment of a fee, which will vary depending on the specific circumstances. They may also ask you to pay any duty or VAT due. If you accept the offer and comply with any conditions related to it, the seized thing can be returned to you.

If you accept the restoration offer and take back possession of the seized thing but you are unhappy with the fee you paid, you can ask for a review of the restoration decision.

Restoration reviews

If you do not agree with HMRC‘s or Border Force‘s restoration decision, you can ask for it to be reviewed by an officer not previously involved in the matter.  If you ask for a review, you should clearly set out the reasons why you disagree with the decision and include any supporting evidence.

An impartial review officer, who was not involved in the decision on the restoration of the seized thing, will consider your case and go over all documents relating to it. The review officer may contact you to explain or to ask for more information. The review officer can confirm, vary or cancel the original decision. They will write to you to tell you the outcome of the review, and what to do if you disagree with it.

Your letter asking for a review must be received by HMRC or Border Force within 45 days of the date of the restoration decision letter, whether it is a request for a review of the decision to refuse restoration or of the restoration conditions, such as the decision to charge a fee. HMRC or Border Force then have up to 45 days from the date they receive your letter to carry out a review and tell you the outcome.

If you ask for a review after the 45-day time limit has expired, it will not be accepted unless you can give a reasonable excuse. So if your review request is outside the time limit, you should explain why it is late when making your request. If appropriate, you should include proof of postage.

If HMRC or Border Force does not agree that the reasons why your review request was late amount to a ‘reasonable excuse’, you can appeal to an independent tribunal against their refusal. You must make that appeal within 30 days of the date of the refusal letter.

Right to Appeal

If you disagree with the review officer’s decision you have the right to appeal to a tribunal within 30 days of the review conclusion. The tribunal is independent of HMRC and Border Force. You should send your appeal against the review officer’s decision to the HM Courts and Tribunals Service and not to HMRC or Border Force. You must include a copy of the original restoration decision by HMRC or Border Force and a copy of the review officer’s letter telling you of the outcome of their review.

If you do not agree with HMRC’s or Border Force’s restoration decision you must first ask them to review their original decision. You can only appeal to the tribunal about decisions involving restoration when the review has been completed.

Why instruct our expert legal counsel?

Our team of solicitors and barristers represent your interests at all times. We start off with a customized strategy for each client. We can provide you with the best representation in negotiations with HMRC and defend all forms of HMRC enquiries and investigations. Our specialist Tax Solicitors and Barristers deliver expert technical knowledge which ensures best results for our clients. We are based in legal epicentre of London, just across the road from the Royal Courts of Justice.