[2009] UKFTT 273 (TC)

TC00219    

FIRST TIER TRIBUNAL CENTRE                                       Reference No:  MAN/07/1433

TAX

GERARD KINNEY                                     Appellant

                                                                           and

                                                    THE COMMISSIONERS FOR

                                      HER MAJESTY’S REVENUE AND CUSTOMS         Respondents

Tribunal    : Ian Huddleston (Judge)

Sitting in public in Belfast on 24^th June 2009

Mr. Michael Grant, Accountant, for the Appellant

Mr. Richard Mansell of the Solicitors Office of HMRC for the Respondents

                                                                     DECISION

1.         This Appeal relates to the disputed decision of the Respondents to assess the Appellant pursuant to Section 73 of the Value Added Tax Act 1993 (“the Act”) in the sum of £7,097 for periods 03/05 and 06/07, as notified to the Appellant by a Notice of Assessment dated 22^nd January 2007.

2.         At the opening of the case the Respondents acknowledged that the correct amount of the assessment was £5,787.66 and it is that amount that is in dispute for the purposes of this Appeal.

3.         The facts of the case are as follows:

·                 Gerard Kinney (“the Appellant”) trades as a sole proprietor under the name Kinney Skip Hire from premises at 74/75 Chancellors Road, Newry, County Down, BT35 8QB;

·                 following a compliance inspection, it became apparent to the Respondents that the Appellant had been zero rating deliveries of timber made to it by an Eire based company (“ACE”) on the basis that the Appellant’s supplies were made in connection with the demolition work carried out by ACE at building sites in the Republic of Ireland and that therefore the transactions between ACE and the Appellant were outside the scope of UK VAT pursuant to Articles 14 and 15 of the Value Added Tax (Place of Supply of Services) Order 1992 (“the Order”) and Public Notice 741 (“Place of Supply of Services”).

4.         In evidence it appeared that ACE demolished buildings in the Republic of Ireland, and subsequently delivered the waste materials to the Appellant at its depot in Newry where ACE was charged an amount per tonne.

5.         Mr. Grant for the Appellant argued that such supplies as the Appellant made were in the course of demolition, and therefore excluded from the scope of UK VAT.

This Tribunal, having heard the evidence and having orally announced its decision dismissing the Appeal pursuant to Rule 35 of the Tribunal Procedure (First-Tier Tribunal) (Tax Chamber) Rules 2009, finds as follows:

(a)       that the Appellant was not involved in a supply of services which prima facie involved demolition works, but rather acted as a sub-contractor to a demolition contractor who operated in the Republic of Ireland;

(b)       in its capacity as a sub-contractor, the Appellant took delivery of waste materials and provided services in relation to the sorting and onward disposal of waste as appropriate;

(c)       the Appellant did not, therefore, share any risk or any reward in relation to the demolition contract itself, and simply was a sub-contractor.  To that extent it was, therefore, removed from the provision of demolition services;

(d)       the activities carried on by the Appellant were carried out at its base in Newry within the United Kingdom;

(e)       on the Tribunal’s interpretation of s.7 VATA 1994; Arts 9, 14 and 15 of the VAT (Place of Supply of Services) Order 1992 and PN741 as applied to those faces the Appellant ought to have charged VAT on the services it supplied.

Having so found, this Tribunal DIRECTS that the Appeal be dismissed.

No order as to costs.

IAN WILLIAM HUDDLESTON

TRIBUNAL JUDGE

Release Date: 19 October 2009