The First Tier Tribunal has had the engaging task of deciding whether imported action figures from Game of Thrones, the Marvel comics and the Living Dead are human, non-human, statuettes or just plastic toys, in an appeal against underpayment of Customs Duty.
The importer had classified the figures according to their back story. HMRC did not like that approach and neither, it transpired, did the tribunal. It turns out most fictional characters are human but the Zombie parts sold in lucky dip bags are not. They were just plastic parts.
Games importer Star-Images Enterprises imports collectable figures which depict fictional characters from comic books, film and TV.
Figures imported include 'Chucky' the 'Living Dead' range, "Game of Thrones" characters and toys and figures made under license from Disney, Marvel, DC Comics and Nickelodeon including Batman, Captain America and the Hulk.
The rate of customs duty that applies these figures depends on their classification:
- ‘Non-humans or animals’ are effectively duty-free with a rate of 0%.
- Dolls represent human beings and attract a customs import duty of 4.7%.
- Statuettes, which are purely decorative by nature attract a duty of 6.5%.
- Plastic figures which do not fall into the above nomenclature attract a duty of 4.7%.
Judge Geraint Williams had the unenviable task of reviewing the classification of 60 items.
According to the evidence submitted during their appeal, the UK importer had classified most characters that had special characteristics, or superpowers, as Non-humans according to their 'back story' based on the comic book or the film and television series narrative.
It followed that special characteristics might include some or all of the following:
- Physical features that are different to those found in human beings (i.e. different flesh colour to human beings).
- The character depicts or portrays a species from another world (an alien) or a God from mythology, or has superpowers or special abilities which humans do not have.
- The character depicts or portrays a doll.
- The character has features that appear human (humanoid) but is a robot or the character was 'dead' but has been brought back to life as a zombie.
For example, for a figure of Beth Greene, a character from Living Dead, it was argued that:
"The figure does not represent only human beings as the character, a survivor, carries a pathogen which will turn her into a zombie when she dies. This is not a characteristic representative of human beings..."
The tribunal did not agree that focusing on the back story was a suitable means of identifying 'non-human' physical characteristics.
Instead, it preferred to consider the figures' objective characteristics and properties, together with their presentation. In deciding whether a figure is a statuette and other ornamental article its decorative or ornamental value must outweigh its recreational function. Non-human creatures can possess predominantly human physical characteristics (e.g., angels, robots, devils, monsters).
The findings were as follows:
Dorothy, The Lion & The Witch of the West
Kitana, Raven, Emma Frost,
Living dead characters
The Wizard of Oz
Coraline, Captain America, Thor (non-human heads)
The Arkham Knight
Game of Thrones figures (on bases)
Zombie parts in ‘blind bags’
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