England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		19th March 2009

SIR ANDREW PARK:

Introduction

1. This judgment relates to two appeals to the High Court from the VAT and Duties Tribunal, which I will call "the Tribunal". Both are appeals against interlocutory decisions of the Tribunal given on issues of a case-management nature which arose in connection with VAT appeals by the two appellant companies. The two companies are associated and there is no need for present purposes to differentiate between them. They had made claims for repayment of large sums of input tax. Her Majesty's Revenue and Customs (HMRC) had refused the claims, and the companies appealed to the Tribunal against the refusals. In the case of each appellant company two VAT periods were involved. If I have followed correctly, these companies were treated as having VAT periods of one month's duration rather than three. The two periods in issue in the appeals are March and April 2006. I do not know whether there are other periods in dispute and awaiting the outcome of this appeal. There is certainly a substantial amount of input tax in dispute for these two periods alone. Taking the two companies together, if I have followed correctly the amount in issue is in the region of £20 million.
2. The companies trade, or certainly traded at the relevant times, in the mobile telephones business. Primarily they traded as exporters of mobile telephones from this country. In the transactions which gave rise to the appeals they had purchased telephones from suppliers in the United Kingdom and had been supplied with them by transactions which were subject to VAT. Thus they had been invoiced for their purchases for contractual prices plus 17.5 per cent for VAT. It follows that they had paid input tax on their purchases. They exported the telephones to purchasers outside the United Kingdom. No VAT was payable on the exports. The appellants, therefore, claimed repayment of the input tax which they had paid.
3. HMRC refused the claims on the grounds that the export transactions arose as parts of series (or "chains") of purchases and sales which (so HMRC said) were infected by fraudulent attempts to recover VAT which, taking an overall view, had never been paid in the first place. HMRC use the expression "Missing Trader Intra-Community Fraud" for transactions or schemes of this nature. They say that in this case a fraud of that sort did take place. They further say that the two appellant companies either knew that that was so or should have known. HMRC contend that, if they are right in those assertions, the appellant companies' claims for input tax recovery were properly refused.

Community Law: the Kittel case

4. For this last proposition HMRC rely on a decision of the Court of Justice of the European Communities (the ECJ) in the Belgian VAT case of Kittel v Belgium, Case C-439/04. I quote paragraphs 56 to 59 from the judgment of the Court:

"56: In the same way a taxable person who knew or should have known that, by his purchase, he was taking part in a transaction connected with fraudulent evasion of VAT must, for the purposes of the Sixth Directive, be regarded as a participant in that fraud, irrespective of whether or not he profited by the resale of the goods."

"57: That is because in such a situation the taxable person aids the perpetrators of the fraud and becomes their accomplice."

"58: In addition such an interpretation, by making it more difficult to carry out fraudulent transactions, is apt to prevent them."

"59: Therefore, it is for the referring court to refuse entitlement to the right to deduct where it is ascertained, having regard to objective factors, that the taxable person knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of VAT, and to do so even where the transaction in question meets the objective criteria which formed the basis of the concepts of 'supply of goods effected by a taxable person acting as such' and 'economic activity'."

5. HMRC say that the appellant companies took part in transactions which were connected with fraudulent evasion of VAT, and that they knew or should have known that they were doing so. The essence of the response by the appellant companies does not really arise on the interlocutory issues with which I am concerned, but I assume it to be that, if the chains of purchases and sales of telephones in which the appellants purchased phones in this country and exported them did indeed include fraudulent evasion of VAT at some stage, they (that is to say the appellant companies) did not know that that was so, nor were there any circumstances from which they should have known about it. I have no view, tentative or otherwise, as to where the true position on this issue is likely to lie. I should perhaps say, however, that the appellant companies say that they are operators in what is sometimes called the grey market in mobile telephones. It is common ground that the grey market exists, and it is not suggested by HMRC that in all cases where there are sales in the grey market there is a VAT fraud taking place. There are undoubtedly legitimate participants in the grey market.

The appeals in this case; the interlocutory issues

6. The appellants appealed against the refusal of their claims by HMRC. There has been an earlier interlocutory issue before the Tribunal, which went to the High Court (in the person of Mr Justice Lightman). However, a stage was reached when the main appeals were to come before the Tribunal for what would undoubtedly be a long hearing. That hearing began, in circumstances which I will describe in more detail at a later point, on 8th May 2008. However, two interlocutory issues arose in the run-up to the hearing. They are the issues which are now before me. One is "the Taylor evidence issue". The other is "the French law issue".

The Taylor evidence issue

7. In this and the next few paragraphs I explain the background to the Taylor evidence issue. In May 2007, the year before the main appeals began, the appellants had served witness statements of their proposed witnesses, including one by a Mr Deakin. Mr Deakin's witness statement was described by Mr Justice Lightman as "akin to expert evidence concerning the legitimate market for grey mobile telephones". The Tribunal had directed HMRC to serve its evidence "in response" by dates which were not in fact met. HMRC applied on 25 February 2008 for an extension of time until 14 March 2008. The appellants objected to the application, but it seems that there was no hearing of the objection. On 14 March 2008 HMRC served upon the appellants the witness statement of Mr Taylor, who is an employee of KPMG.
8. There were several interlocutory hearings of the Tribunal related, among other matters, to the Taylor evidence issue. All were conducted by Dr David Williams. The interlocutory hearing that matters, so far as the present case was concerned and so far as the Taylor evidence issue was concerned, took place on 7th April 2008. On 9th April 2008 Dr Williams released an unsigned version of his decision, whereby he admitted the Taylor evidence. He released a signed decision on 18th April. The first of the interlocutory decisions now under appeal to me is that decision. I will say more about it later.

The French law issue

9. I move on to describe in outline how the French law issue arose. Researches by the appellants' legal advisers in preparation for the appeals revealed material originating from the French VAT authorities. It indicated the view which the French authorities took of the ambit of the Kittel decision. I will say more about this later but the French authorities seem clearly to have adopted a narrower view of the circumstances to which the Kittel decision applies than that adopted by HMRC in this country. It also appears, at least in part, that it is not just a matter of what the French authorities believed the effect of the Kittel decision to be. The French materials consist of, or at least include, an instrument which has the force of law in France.
10. On 4th April 2008, which was a little more than a month before the date at which the main appeal was to commence before the Tribunal, the appellants made an application to the Tribunal for it to admit the French material which they wished to place before it. There was a hearing before Dr Williams about this on the 1st May 2008. He released his decision the next day. His decision was to refuse to admit the French material. That is the second of the interlocutory decisions appeals against which are now before me.

The progress of the main appeals

11. Before I turn to the two appeals before me, I should continue to trace the history of the main appeals. On 8th May 2008, the hearing commenced before Dr Williams of the appeals by the appellants against HMRC's refusals of their claims for repayment of input tax. In the course of the hearing Mr Taylor was a witness. I assume that in evidence-in-chief he confirmed his witness statement. He may have added a few points in evidence-in-chief, but I doubt that they would have amounted to anything much. He was, however, cross-examined by Mr Patchett-Joyce, counsel for the appellants, for between two and three days. The main hearing, covering all the evidential issues which arose and also (I assume) much of the documentary material that needed to be presented to the Tribunal, continued for the period from the commencement on 8th May until 5th June 2008. So those parts of the hearing occupied about four weeks. On 5th June the hearing was adjourned on the basis that there would be two days of closing submissions towards the end of July 2008.
12. However, those hearing dates have been vacated for reasons related to the interlocutory appeals which are now before me. On 2nd June 2008, a date when the main hearing was still in progress, the appellants had filed a notice appealing against Dr Williams' decision to admit the Taylor evidence. On 27th June 2008, during the period when the appeals were adjourned, the appellants filed another notice appealing against Dr Williams' decision not to admit evidence of French law. It is those two interlocutory appeals which are now before me. I anticipate that, at least in the normal course, the hearing before Dr Williams will resume hereafter.

The nature of appeals from interlocutory decisions of a tribunal

13. Before I turn to the two specific appeals, it is helpful for me to say something about this. The extent to which an appellate court should interfere with an interlocutory decision of a first instance tribunal is significantly restricted. I was referred to paragraphs 11 to 14 of the judgment of Mr Justice Richards in CCE v Gil Insurance Limited [2000] STC 204. I will not reproduce those paragraphs in extenso here but I adopt and respectfully agree with everything that they say. I do, however, quote three sentences from paragraph 11 of the judgment.

"It is not the function of this court to entertain a re-run of the arguments before the Tribunal and to reach its own decision on whether to order a strike-out or the hearing of a preliminary issue ... Not every error of law in the Tribunal's reasoning would vitiate the decision and justify intervention. It seems to me that in this context the court should not intervene unless the error has resulted in a decision that is plainly wrong."

Mr Justice Richards also quoted the following passage from the judgment of Lord Hope in the Court of Session in CCE v Young [1993] STC 394 at 397.

"It is clear that it is not open to us to interfere with the decision which was taken by the Tribunal in this case simply because if we had been presented with the same facts we would have reached a different result. The test which we must apply is whether the tribunal exercised its discretion reasonably and in a judicial way ..."

See also Peter Smith J in Seabrook and Smith Limited v CCE [2004] EWHC 306 at paragraph 3.

14. In this connection, in the admirable skeleton of Mr Patchett-Joyce he was careful to formulate all his criticisms of the Tribunal's interlocutory decisions in terms of them being decisions which it was not open to any properly instructed tribunal to reach (or in other terms conveying the same sense), but I hope he will forgive me for saying that that was not generally apparent in his equally admirable oral submissions.
15. The questions for me are not whether I would have given the same decisions as those which Dr Williams gave. The questions are whether I am persuaded that his decisions were clearly wrong. He gave brief reasons for his decisions. In that connection it is not the case that I should interfere with his decisions merely because I think, as in one or two respects I do, that a few of the reasons which he gives or the terms in which he formulates the reasons are not entirely clear.

The Taylor evidence issue

16. I begin by saying more than I have said hitherto about Dr Williams' decision. It was contained in a document which, as I have said, was released unsigned on 9 April 2008 and was formally issued in a signed form on 18 April 2008. The document falls into two parts. The first part is headed "Direction". The second part is headed "Reasons". In the Direction part there are four numbered paragraphs, some of which have subparagraphs. In the Reasons part there are ten paragraphs occupying about two single spaced pages. I will not prolong this judgment by setting out the document in full, but I think it is desirable for me to extract a few parts of it and reproduce them here. I begin with some parts of the Directions.

"1(1). The evidence of Gary Taylor at 14/03/08 is admitted as evidence of fact but with no special status as expert evidence."

"1(3). The evidence of Gary Taylor is accepted as subject to objection by the appellants, and Mr Taylor is required to attend to give evidence personally to the Tribunal as agreed by counsel to the parties."

"2(1)... the appellants are given leave to offer further evidence of any witness whose evidence to date is alleged to be rebutted by Mr Taylor's evidence, in the form of a further witness statement in proper form by that witness ..."

"4. Liberty to apply.

I also quote a few selected extracts from the Reasons.

"1. The Tribunal, as it indicated at the directions hearing, gives only brief reasons for these directions. The arguments for and against the application raised issues of general importance to cases of MTIC fraud and potentially to VAT appeals generally. The Tribunal will deal with those general issues in its decision to follow the hearing listed to be started within a month of this hearing. The Tribunal considers it to be in the interests of the speedy and just determination of the appeals that it gives full reasons as part of its decision in the appeals and not at this stage. The Tribunal will accept further argument about the evidence admitted by this direction at the hearing ..."

"2. The Tribunal takes the objections to the evidence to be that: it is not relevant; it is not expert; it is not evidence of fact of the witness, but of others; it is not in rebuttal; it is not fair to admit it at this stage ..."

"3. The Tribunal does not accept the submissions for the appellants that this evidence is not relevant to the Tribunal's decision. The Tribunal agrees with the respondents that the subject matter of the evidence, which is that of markets in mobile telephones, is one that has led to divergences of opinion between other tribunals dealing with MTIC cases about factual aspects of the markets in mobile telephones. It will take a full view of the evidence when offered it at the hearing. It will then make any necessary decision as to the ability of the witness to give evidence of fact on the evidence offered and as to specific relevance to these appeals in that context and at that time. It will also decide what weight, if any, is to be accorded to the evidence."

"4. The Tribunal is satisfied that the evidence is produced as rebuttal evidence. The Tribunal takes the view that rebuttal evidence should be admitted unless other factors suggest this is unfair or will impede the speedy determination of the case now listed for full hearing for a second time starting in May."

"5. The Tribunal does not give this evidence special status as expert evidence. It applies that view equally to any other evidence said to be expert evidence. There is no specific provision in the Value Added Tax Tribunal Rules 1986 about such evidence. It therefore does not consider that any special directions are needed for this or any other evidence offered as expert evidence. It does not accept the arguments for the appellants that it should reject the evidence of this witness as not expert. It does not make directions about the witness or the evidence by reference to considerations drawn by the appellants from CPR 35 or the accompanying practice direction or protocol ..."

"7. The Tribunal accepts the explanations for the respondents of the lateness of the application to admit the evidence and of the reason for the evidence being advanced at this stage. It notes the dates of service of the evidence against which this evidence is offered in rebuttal. The appellants having been put on full notice of the contents of this evidence before the directions hearing of 18 March 2008, and the case being listed for 16 days and to start dealing with evidence on 12 May 2008, the Tribunal considers that there is no undue prejudice to the appellants in allowing the evidence to be admitted at this stage ..."

17. The tribunal's decision is challenged on four grounds.

(1). It is said that the evidence is not "rebuttal evidence". I have four points to make in this connection, and I make them in the following subparagraphs (a) to (d).

(a) The basic submission that the evidence is not rebuttal evidence derives from paragraph 4 of Dr Williams' reasons:

"The Tribunal is satisfied that the evidence is produced as rebuttal evidence."

The argument is that the evidence is not really rebuttal evidence at all, and therefore it should have been rejected. In my judgment this is a somewhat unreal issue and I do not think that it should particularly matter whether Mr Taylor's evidence is accurately described as "rebuttal" evidence or not. I have read the evidence. I have also read the evidence described by Mr Justice Lightman as "quasi-expert" evidence of Mr Deakin on behalf of the appellants. Considering Mr Taylor's evidence against the background of Mr Deakin's evidence, it seems to me that quite a lot of it is in the nature of rebuttal, but it also seems to me that quite a lot of other parts of it is not. Mr Taylor has not, as it seems to me, set out simply to rebut Mr Deakin's evidence and not to do anything more than that. Although he does not, I think, say this himself, the inference which I draw from reading his evidence is that he has set out to give whatever evidence he believed he could and which he thought would be relevant and of possible assistance to the Tribunal. I see nothing wrong with that. I would consider evidence produced in those circumstances to be entirely suitable for the Tribunal to receive, and that should be true both of parts of it which did rebut things said by Mr Deakin and of parts of it which were not specifically rebutting anything said by Mr Deakin (or, I might add, by other witnesses who had produced witness statements on behalf of the appellants).

(b) The original order which anticipated Mr Taylor's evidence traces back to directions of the Tribunal given on 10th September 2007. The paragraphs in that order dealt first with evidence on behalf of the appellants and then with evidence on behalf of HMRC. In relation to March 2006 the first relevant paragraph, which was paragraph (4), provided that the appellants were "to serve any further witness statements in response by 4 pm on 29/10/07". Paragraph (5) in relation to HMRC read:

"The respondents [HMRC] to serve any further witness statements in response by 4 pm on 21/11/07."

The words "in response" appear in both of those paragraphs. "In response" is not identical to "in rebuttal", but I make the point that no particular significance can sensibly be attached to the words "in response" in those orders. In particular, as respects paragraph (4) it is not clear to what any witness statements on behalf of the appellants would be in response. The expression "in response" in this context often goes in as a matter of routine without having any particular significant meaning.

I cannot see that, where the words "in response" appeared in paragraph 5 and in the corresponding paragraph for the later VAT period, they were intended to mean that the content of witness statements from witnesses on behalf of HMRC could only answer the statements of the appellants' witnesses and could not do any more than that.

(c) By the time of the interlocutory hearing at which Dr Williams admitted Mr Taylor's evidence, Mr Taylor's witness statement had been served. I am informed that Dr Williams had a copy of it before him at the Tribunal hearing. I do not know whether he read the whole of it. Nevertheless, when he made the order that the witness statement was to be admitted, the only sensible analysis was that he allowed to be admitted the whole statement which was before him, not just those parts of it which could be regarded as rebutting specific parts of the evidence tendered on behalf of the appellants.

(d) Further, it is noticeable that at several points, both in the Direction in the early part of Dr Williams' decision and in the Reasons, he reserved to the appellants the entitlement to raise specific issues on the evidence at the hearing if they wished. For example, I have quoted sentences from paragraph 3 of the Reasons, which I repeat:

"It [the Tribunal] will take a full view of the evidence when offered at the hearing. It will then make any necessary decision as to the ability of the witness to give evidence of fact on the evidence offered and as to the specific relevance to these appeals in that context and at that time."

There are other sentences from which it is clear that what Dr Williams was doing was saying that the witness statement as a whole is admitted (or perhaps is not excluded), but that did not mean that everything stated in the witness statement would necessarily be accepted by him when it came to his role to determine the case in the light of the evidence which had been placed before him.

I have nothing further to say on the submission that Mr Taylor's evidence should not have been admitted because it was not "rebuttal evidence".

(2). It is said that Mr Taylor is not an expert. I do not accept that his evidence should be excluded on this ground. I make three specific points in support of my conclusion.

(a) For most purposes, I think that Mr Taylor can be regarded as an expert. He has considerable past experience, which he describes in his witness statement, of the mobile telephone business generally, even though he has not himself worked in the particular sector of it in which the appellants have operated. Further, an important point in my opinion is that Mr Taylor appears to be KPMG's internal expert upon the mobile telephones sector. In that role it must be expected that he would have acquired a great deal of specialist knowledge of the business. And the content of his evidence displays to my mind that he plainly does have extensive knowledge and understanding of the field to which the evidence is directed.

(b) In any case the Value Added Tax Tribunal rules provide as follows in paragraph 28:

"28. Evidence at a hearing"

"(1) ... a tribunal may direct or allow evidence of any facts to be given in any manner it may think fit and shall not refuse evidence tendered to it on the grounds only that such evidence would be inadmissible in a court of law."

This rule is not an open sesame for any party to an appeal to call anyone to give evidence on anything. It does however relax, and in my judgment is intended to relax, some of the more rigid evidential rules which can arise in High Court proceedings. I do not accept the submission that the rule comes close to being a one-way option in favour of appellants. If HMRC wish to adduce in evidence a competent and informative analysis of a sector of business and of an appellant's activities within it, rule 28(1), in my judgment, enables them to do that without having to meet technical arguments about whether the witness does or does not strictly rank as an expert.

(c) I should, however, say that I do accept that there are some respects in which what the Tribunal has said on this aspect of the case is not very happily expressed. I quote paragraph 1(1) of the directions:

"The evidence of Gary Taylor of 14/03/08 is admitted as evidence of fact but with no special status as expert evidence."

Then the Tribunal reverted to this topic in paragraph 5 of the reasons (which I have quoted earlier and do not repeat here). It is not altogether clear to me whether the Tribunal takes the view that all the evidence of Mr Taylor was evidence of fact and admissible as such or whether all that it was saying was that, given that the rules applicable to VAT tribunals draw no distinction between factual evidence and expert evidence, it does not matter whether Mr Taylor's evidence is categorised as expert evidence or not. Although the Tribunal's reasons are somewhat obscure on this, my own opinion is that the categorisation of the evidence as expert or not does not matter. As I have said, I have read Mr Taylor's evidence. It appears to me potentially helpful to the Tribunal, and it seems to me entirely proper for the Tribunal to have accepted it.

(3). It is submitted that Mr Taylor's evidence is not relevant. I cannot agree with this. In my judgment the evidence is relevant. The Tribunal may or may not in the end accept it, but I cannot conceive of it as being regarded as irrelevant.

(4). It is also submitted that for Mr Taylor's evidence to be admitted when it was did not leave sufficient time for the appellants to consider it and to be able to deal with it at the hearing of the appeal. The hearing was to commence about a month later. The submission is that that was not sufficient time for the appellants to consider and prepare themselves to respond to what was certainly a formidable document produced by Mr Taylor. It appears to me that this is a matter of the sort where the court should not interfere with the decision of the Tribunal. Dr Williams considered the point in paragraph 7 of his reasons, which I have quoted earlier. I believe that it would be wrong for me to interfere with his decision on an appeal which is restricted in scope as I have explained earlier. It is perhaps reasonable for me to add that Mr Patchett-Joyce did feel able to cross-examine Mr Taylor for over two days. An application for an adjournment might have been made but was not. The explanation for that was, I was told, that the appellants were being denied the receipt of very large sums of money which they said were owed to them, and did not wish to have further time elapse before they pursued their entitlement to recover the sums. I will only comment that that submission seems rather incongruous given what actually happened, namely that the present interlocutory appeals were pursued, thereby necessarily delaying a decision on the main appeal. That appeal was adjourned and still stands adjourned some ten months later. I should also note that the Direction part of Dr Williams' decision of 7th April included the words "Liberty to apply". It was open to the appellants to apply to adduce further evidence themselves, and they could have applied to adduce evidence from witnesses other than those who had already produced witness statements on their behalf already. Indeed, Mr Benson accepted in the course of his submissions on behalf of HMRC that it is still open to the appellants to make such an application. I do not know whether Dr Williams would be willing at this stage to accede to an application for the appellants to adduce more evidence in response to Mr Taylor, but the possibility is there for them to make the application if they wish to.

18. Accordingly, on the Taylor evidence issue as a whole, despite there being some unsatisfactory features in the detailed way in which Dr Williams gave his reasons, I can see no basis for interfering with his decision. I dismiss the appeal on the Taylor evidence issue.

The French law issue

19. A missing trader intra-community fraud, when conducted in relation to mobile telephones, always involves at least two elements. One of them is that one VAT registered trader acquires and sells telephones in circumstances where it is liable to account to HMRC for VAT but, for whatever reason, it does not in fact pay the VAT. That trader is sometimes described as the defaulting trader. I will use that expression, but I do not wish to be understood by it as implying that the trader concerned is necessarily defaulting in a dishonest and unjustifiable way. Defaults can arise simply from misfortune as well as from dishonesty. The second element is that another VAT registered trader who is involved in the same chain of sales makes a claim to repayment of input tax. It will, I think, be apparent that, if the first trader had a liability to pay output tax to HMRC but did not meet it (for whatever reason), but the second trader recovers from HMRC an equivalent or possibly somewhat larger amount of input tax, there will be a serious loss of VAT to the Exchequer.
20. HMRC's interpretation of the Kittel decision is that it does not matter whether there are or are not other parties in the chain between the defaulting trader and the trader claiming the repayment, provided in either case that there was VAT fraud involved and that the repayment trader knew of it or should have known of it. Thus a chain can have more than two parties involved in it and can be a chain where the defaulting trader is not an immediate trading counterparty with the trader who claims the repayment.
21. On HMRC's analysis of the Kittel decision the input tax repayment claim should be denied provided that the trader making the claim knew of the VAT fraud or should have known of it. Tribunal decisions have been reached in favour of HMRC on this basis, and it is submitted to me that in two recent High Court decisions this approach was at least acknowledged by judges without being questioned.
22. The French materials produced by the French VAT authorities in consequence of the Kittel decision appear to proceed on the basis that the decision only applies if the trader making the repayment claim purchased the goods directly from the defaulting trader. As I have said earlier, it is not just the case that that analysis of Kittel has been stated to be the opinion of the French authorities. An instrument which in some form takes legal effect in France has been introduced and proceeds on that footing.
23. The appellants applied to adduce evidence of French law. It seems to me clear that they did so on the basis that they wished to use the French law in support of arguments presented to the Tribunal in the United Kingdom that the French approach to the interpretation of Kittel is correct and that the approach of HMRC is wrong.
24. That being the argument intended to be presented to the Tribunal, I consider that the Tribunal was correct to exclude the French evidence. Where a tribunal in the United Kingdom is concerned to determine the ambit of the Kittel decision it should do so on the basis of the decision of the ECJ taking account, if it wishes to do so and if it is invited to do so, of the text of that decision not just in English but in other languages. It can, I believe, also pay regard to, without considering itself as being bound by, judicial decisions in other member states upon the meaning of a decision of the ECJ. However, I agree with Dr Williams that an opinion of the VAT administrative authority in another member state about the meaning of an ECJ decision is not material which can be legitimately prayed in aid where the issue is one for the United Kingdom tribunal or court and concerns the meaning of the decision.
25. It might be different, and my tentative view is that it probably would be different, if the purpose of adducing in the Tribunal evidence of how the French VAT administration is implementing the Kittel decision in France was to invite the Tribunal to make a reference to the ECJ. If the VAT administration in one member state says that an ECJ decision means that VAT is payable (or that input tax recovery is denied) in circumstances where the administration in another member state says the opposite, there is a conflict between two different member states in circumstances where the treatment should be consistent in all member states. A conflict of that sort could properly be referred to the ECJ. In this case the appellants may or may not wish to make an application for a reference of that sort to be made. I appreciate that there will be delay and cost involved, and that that may make them reluctant to apply for a reference. If they do make an application of that sort, the Tribunal will no doubt consider it, and my tentative view is that, upon such an application, it would be entirely proper to produce the French materials to the Tribunal in order to demonstrate to it that a conflict does indeed exist between the treatment in this jurisdiction and the treatment in another jurisdiction of an issue which should be treated in the same way.
26. That, however, was not the purpose for which the application was made to the Tribunal. Given what the purpose actually was, I agree with the Tribunal's decision and I must dismiss this appeal.
27. I would add one footnote. I have referred to the possibility of this apparent conflict being made the subject matter of an application to the Tribunal (or indeed to a court in this country) to make a reference to the ECJ. An alternative would be for the appellants to draw the point to the attention of the EC Commission. I do not know how attractive that would be, but it is certainly one of the functions of the Commission to seek to prevent differential treatments of the same VAT issue arising between member states.

Conclusion

28. I have no other observations to make. The result is that the appeals are dismissed.