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You are here: BAILII >> Databases >> First-tier Tribunal (Tax) >> Hanover Company Services Ltd v Revenue & Customs [2010] UKFTT 256 (TC) (09 June 2010)
URL: http://www.bailii.org/uk/cases/UKFTT/TC/2010/TC00550.html
Cite as: [2010] STI 2575, [2010] UKFTT 256 (TC), [2010] SFTD 1047
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Hanover Company Services Ltd v Revenue & Customs [2010] UKFTT 256 (TC) (09 June 2010)
VAT - SUPPLY
Single or multiple
[2010] UKFTT 256 (TC)
TC00550
Appeal number: LON/2007/0131
VAT – Single or multiple supply – Estoppel/Legitimate expectation – Whether Tribunal has Jurisdiction – Oxfam v HMRC [2010] STC 686 considered – Appeal dismissed
FIRST-TIER TRIBUNAL
TAX
HANOVER COMPANY SERVICES LIMITED Appellant
- and -
THE COMMISSIONERS FOR HER MAJESTY’S
REVENUE AND CUSTOMS Respondents
TRIBUNAL: JOHN BROOKS (TRIBUNAL JUDGE)
MICHAEL JAMES (MEMBER)
Sitting in public at Vintry House, Bristol on 22 April 2010
Robin Haigh of Trenfield Williams Chartered Accountants for the Appellant
Sarabjit Singh, counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs, for the Respondents
© CROWN COPYRIGHT 2010
DECISION
1. In its Notice of Appeal, dated 11 January 2007, Hanover Company Services Limited (“Hanover”) appeals against:
(1) an assessment in the sum of £10,722.00 plus interest of £2,098.00 issued on 28 July 2006;
(2) an assessment in the sum of £92,377.00 plus interest of 10,843.35 issued on 11 September 2006; and
(3) misdeclaration penalties totalling £6,180 which have been imposed on the assessments.
2. These assessments (the “Assessments”) which are for VAT due between 1 May 2003 and 31 January 2006 were made, by Mr David Fowler, an officer of HM Revenue and Customs (“HMRC”) to the best of his judgment on the basis that Hanover made a single supply of standard rated company formation services as opposed to separate supplies of standard rated company formation services and zero-rated printed material and that statutory registration fees incurred in the formation of “off the shelf” limited companies were not disbursements outside the scope of VAT. The grounds of appeal are that “the assessments are inconsistent with VAT legislation and HMRC’s published ‘Business Briefs’.”
Facts
3. Having heard oral evidence from Mr Richard O’Driscoll (the director and sole shareholder of Hanover) and Mr David Fowler (the officer who made the Assessments) and also considered the documentary evidence provided by and on behalf of the parties, we find the following facts.
4. Hanover was formed by Mr O’Driscoll in October 1997 and was registered for VAT with effect from 1 May 1999. Its business is the provision of company formation services providing, amongst its services, a fixed price “package” to its clients which although it is advertised at £47.95, as Mr O’Driscoll explained in cross examination many clients pay less as the price is negotiable and is used to encourage clients to use additional services provided by Hanover. The package consists of:
(1) a company registration certificate;
(2) three copies of the Memorandum and Articles of Association;
(3) minutes of the first board meeting;
(4) a company register; and
(5) share certificates.
5. From the date of its registration Hanover accounted for VAT by adopting the then industry standard practice of identifying the supply of printed material, such as copies of Articles and Memorandum of Association, separately on its invoices applying a zero-rate of VAT whereas the standard rate was applied to the supply of company formation services.
6. Hanover was following this practice when, on 31 January 2001, it received its first “assurance visit” from a Mr R C Boobyer, an officer with what was then HM Customs and Excise (“HMCE”). Mr Boobyer reviewed the VAT treatment of printed material and discussed this with Mr O’Driscoll, who did not make a note of the discussion, but remembered that he told Mr Boobyer that Hanover had adopted the practice that he understood was used by the “industry leader”, Jordans.
7. Assuming that Mr Boobyer would have told him if there had been a mistake, Mr O’Driscoll said he was “assured” by the fact that Mr Boobyer “didn’t come back to me” following the visit and took this to mean that Hanover had been correct to distinguish the supply of printed material as a zero-rated supply separate from the standard rated supply of company formation services. In addition, as the question had arisen, Mr O’Driscoll sought the advice of Trenfield Williams, Hanover’s accountants, who after consulting the guidance published by HMCE, confirmed that Hanover had adopted the correct approach in its VAT accounting.
8. The published guidance available to Hanover’s accountants, but which was not consulted or relied upon by Mr O’Driscoll, and therefore Hanover, consisted of Business Brief 2/2001 published by HMCE on 15 February 2001; VAT Information Sheet 02/01 which was sent to VAT registered persons with their VAT returns; and paragraph 9.5.4 of HMCE’s Supply and Consideration Manual V1-3.
9. Business Brief 2/2001 sets out the policy of HMCE as to whether a transaction consists of a single composite supply or two or more independent supplies for VAT purposes following the judgments of the European Court of Justice and the House of Lords in the case of Card Protection Plan v Customs and Excise Commissioners [1999] 2 AC 601 (“CPP”). A further, less technical, explanation of the effect of CPP was contained in the VAT Information Sheet 02/01 entitled ‘Single or multiple supplies – How to decide”. It included a list, which did not include company formation services, but which was “not exhaustive” of “some of the areas on which the issue of single and multiple supplies can have an impact.”
10. Unlike the Business Brief and VAT Information Sheet, paragraph 9.5.4 of the Manual did specifically refer to company formation services stating under the heading “Memorandum and Articles of Association”:
The service by a registration agent of preparing and lodging the original Memorandum and Article of Association with the Registrar of Companies is standard rated. However, an agent can zero rate the provision of copies of the Memorandum and Articles provided the supply is separately itemised on the invoice.
This was confirmed in the case of J P Company Registrations Limited (LON/86/302) where Customs argued there was a single supply of the formation of the company. However, the Tribunal decided ‘in substance and reality’ there were two supplies and the provision of the prints could be zero-rated under the rules for printed matter. Remember – this only applies where the prints are separately itemised on the invoice.
11. It should be noted that J P Company Registrations Limited pre-dates CPP and that paragraph 9.5.4 was replaced in November 2005. The new paragraph 9.5.4, which makes no reference to J P Company Registrations Limited, states that “… the question arises as to whether there is a single supply of company registration services to which the printed matter is ancillary, or separate multiple supplies of zero-rated printed matter and standard-rated services” rather than advising, as previously, that the supply of a company’s memorandum and articles can be zero rated. It is also worth noting that the introduction to HMRC’s Guidance Manuals contains the following “health warning”:
These manuals contain guidance which has been prepared for HMRC staff. It is being published for the information of taxpayers and their advisors in accordance with the Code of Practice on Access to Government Information.
It should not be assumed that the guidance is comprehensive nor that it will provide a definitive answer in every case …
The guidance in these manuals is based on the law as it stood at the date of publication. HMRC will publish amended or supplementary guidance if there is a change in the law or in the Department’s interpretation of it. HMRC may give earlier notice of such changes through Tax Bulletin or a press release.
12. Having been advised by its accountants, but in the absence of any written confirmation from HMCE or subsequently HMRC, that it was correct to do so, Hanover continued to apply a zero-rate of VAT to the supply of printed material and was still doing so when, on 16 May 2006, it received a VAT assurance visit from an officer of HMRC, Mr David Fowler.
13. The way in which Hanover accounted for VAT on the supply of printed material was discussed during the visit. Mr Fowler, who considered that there was a single supply of company formation services drew the attention of Mr O’Driscoll to HMRC’s Business Brief 01/2006 published on 19 January 2006. This sets out HMRC’s view that:
… where there is a single advertised price for a company formation package that includes some printed matter (for example a number of copies of the printed and perhaps bound Memorandum and Articles of Association), there is a single supply standard-rated supply of company formation services. This supply is the principal supply to which the supply of printed matter is ancillary.
14. Following the assurance visit and in the light of the guidance provided in the Business Brief Hanover changed its practice to account for VAT at the standard rate for printed material in its invoices from the date of publication of the Business Brief. However, Mr O’Driscoll does not accept that Hanover should be required to account for VAT at the standard rate on the printed material before this time and for that reason has appealed against the Assessments.
Summary of Parties Submissions
15. Although Mr Haigh, for Hanover, maintains that, despite the change in its VAT accounting practice in 2006, it made separate supplies of standard rated company formation services and zero rated printed matter, his primary submission was that Hanover had a legitimate expectation that HMRC would apply the guidance as published in paragraph 9.5.4 of the Manual V1-3 and as such should be estopped from making the Assessments.
16. Although not raised prior to the hearing Mr Haigh also contended that, if it did not succeed in its appeal against the Assessments, by relying on the guidance provided by HMRC Hanover had a reasonable excuse and as such was not liable to a penalty.
17. Mr Singh, for HMRC submitted that there was a single supply of company services by Hanover which were properly assessed to VAT.
18. With regard to Hanover’s primary case Mr Singh contended the appeal should be dismissed as:
(1) there is authority binding upon the Tribunal which establishes that it does not have the jurisdiction to make a finding that HMRC are “estopped” from assessing VAT;
(2) alternatively, if there is a conflict between binding authorities as to whether or not the Tribunal has the jurisdiction to make such a finding the Tribunal should prefer the line of authority which provides it cannot make such a finding;
(3) alternatively, if the Tribunal finds that it does have jurisdiction to make a finding about whether or not HMRC were “estopped” from assessing Hanover for VAT it has fallen far short of disclosing the kind of abuse of power on the part of HMRC that would justify a finding by the Tribunal that HMRC were not entitled to assess Hanover for the VAT due on supplies of printed material.
19. Mr Singh also contended that Hanover did not have a reasonable excuse, it had relied on its accountants not HMRC, and the penalty which has been mitigated from £11,591 to £6,180 should be confirmed.
20. We consider the issues raised by these submissions, which are explored in greater detail, below.
Single or Multiple Supply
21. Until receipt of the skeleton argument submitted on behalf of Hanover shortly before the hearing HMRC had understood that the only the “estoppel” argument was going to be raised before the Tribunal. We were referred to a letter, dated 22 December 2009, from HMRC to Hanover’s accountants seeking confirmation that this was the case. The response, dated 9 March 2010, contained nothing to contradict this understanding. In the light of this correspondence, Mr Singh raised the question as to whether Hanover should be permitted to introduce what was essentially a new ground of appeal so late in the day.
22. However, given the overriding objective of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (the “Tribunal Rules) to enable the Tribunal to deal with cases “fairly and justly”, although mindful of the concerns raised by Mr Singh, we consider that Mr Haigh’s submissions in relation to the issue of whether Hanover had made separate supplies of zero-rated printed material should be taken into account.
23. Mr Haigh submitted that although company formation law requires that a copy of a proposed company’s Memorandum and Articles of Association is lodged at Companies House it does not require multiple copies of these documents to be provided to Hanover’s clients. As such it is a separate service that is divisible from, and not an essential part of, the company formation service. Accordingly it should be regarded as a freestanding supply of printed material.
24. Mr Singh referred to the “package” provided by Hanover and took us to the decision of the VAT and Duties Tribunal in Company Registrations Online (2006) VTD 19461(Chairman Lady Mitting) which was concerned, like the present appeal, with whether there had been a single supply of company services with a separate supply of printed material. Also, as in the present appeal, the Appellant in that case had provided a package of services which included copies of a company’s Memorandum and Articles of Association to its clients.
25. In that case the Tribunal concluded at [19]:
26. Having considered the facts of the present appeal we find that although, as Mr Haigh submitted, it may be possible to separate the provision of the Memorandum and Articles of Association from the provision of company formation services this was not done by Hanover. The printed material was supplied as an ancillary element of the package of standard rated supply of company formation services and, as such should be standard rated. We therefore confirm the Assessments.
Jurisdiction of the Tribunal
27. The jurisdiction of the Tribunal is defined by s. 83 of the Value Added Tax Act 1994 (“VATA”) which provides, so far as material, as follows:
(1) … an appeal shall lie to a tribunal with respect to any of the following matters –
…
(b) the VAT chargeable on the supply of goods or services …
…
(p) an assessment —
(i) under section 73(1) or (2) in respect of a period for which the appellant has made a return under this act
(ii) …
(iii) …
or the amount of such an assessment
28. Mr Haigh contends that as a result of the decision of Sales J in Oxfam v HMRC [2010] STC 686 (“Oxfam”) the Tribunal has the jurisdiction to make a finding that because Hanover had a legitimate expectation that it would not be assessed on the supply of printed matter HMRC are not entitled to raise, or are estopped from raising, the Assessments. Mr Singh disagrees, submitting that such an argument properly belongs to the sphere of judicial review in the Administrative Court and that the Tribunal has no jurisdiction to make such a finding. He contends that the language of s. 83 VATA cannot be extended so as to enable the Tribunal to consider the conduct of HMRC and review whether they are precluded from collecting VAT which is due as a matter of law as this would be inconsistent with the language of “appeal”.
29. The jurisdiction of the Tribunal and its predecessor, the VAT and Duties Tribunal, is a matter that has previously been considered by the Courts. The authorities were reviewed by Jacob J (as he then was) in Customs and Excise Commissioners v National Westminster Bank [2003] STC 1072 (“Natwest”) which concerned a claim of unfair or unequal treatment in relation to claim for repayment of overpaid VAT which had been refused by HMRC on the basis of “unjust enrichment”.
30. Jacob J said at [47 – 52]:
[47] “The commissioners riposte by arguing that this complaint of unfair treatment is essentially one about their conduct. It is not a point involving the facts of Lombard's individual case or the law applicable to those facts. The proper remedy for unfair treatment is judicial review, not an appeal to the tribunal. The tribunal is not a body entrusted with a supervisory, public law, jurisdiction. Here there is a question of discretion involved.
[48] I think the commissioners are right. The actual decision impugned is that to invoke unjust enrichment in the case of Lombard. It is not a decision to invoke unjust enrichment in the case of Lombard but not others. That is what happened in fact but there never was a decision to that effect.
[49] There is authority which supports the conclusion that general conduct towards taxpayers is outwith the tribunal's jurisdiction. I turn first to Lord Lane (with whom Lord Scarman and Lord Simon of Glaisdale agreed) in Customs and Excise Comrs v J H Corbitt (Numismatists) Ltd [1980] STC 231 at 239-240, [1981] AC 22 at 60-61:
'Assume for the moment that the tribunal has the power to review the commissioners' discretion. It could only properly do so if it were shown the commissioners had acted in a way which no reasonable panel of commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight. If it had been intended to give a supervisory jurisdiction of that nature to the tribunal one would have expected clear words to that effect in the 1972 Act [the Finance Act 1972]. But there are no such words to be found. Section 40(1) sets out nine specific headings under which an appeal may be brought and seems by inference to negative the existence of any general supervisory jurisdiction.'
(Section 83 is the successor to the s 40(1) of the 1972 Act referred to. There are now more specific headings but no general supervisory jurisdiction has been conferred.)
[50] The tribunal in Marks and Spencer plc v Customs and Excise Comrs [1998] V&DR 93 (Mr Stephen Oliver QC) was of the same view. It said (at para 18):
'Does our jurisdiction in any way extend to controlling the manner in which the Commissioners have administered the law? Here again, I go back to sections 83 and 84. The VAT and Duties Tribunals have been created by statute and their powers are conferred by it. We have no supervisory jurisdiction, so far as claims and refusals and refusals of claims under section 80 are concerned. Our jurisdiction is appellate. It is limited to determining whether decisions of the Commissioners to refuse claims are correct in law ... However, no provision of the 1994 Act enables this tribunal to declare ineffective the manner in which the Commissioners have applied the provisions of section 80.'
[51] On appeal Moses J agreed, saying ([1999] STC 205 at 246):
'However in so far as the complaint is not focused upon the consequences of the statute but rather upon the conduct of the commissioners then it is clear the tribunal had no jurisdiction. Its jurisdiction is limited to decisions of the commissioners and it has no jurisdiction in relation to supervision of their conduct.'
Moses J specifically endorsed the tribunal's refusal of jurisdiction in relation to complaint C, namely that 'the commissioners have treated other taxpayers differently and this further offends against the principle of equality'.
[52] I can see no reason for differing from Moses J and judicial comity requires that I follow a decision of a court of co-ordinate jurisdiction unless I do. Here I go further. I agree with him.”
31. The issue of the jurisdiction of the Tribunal was more recently considered by Sales J in Oxfam where he referred to s. 83(1) VATA and s. 83(1)(c), with which that case was concerned, saying at [63 – 72]:
[63] “On the ordinary meaning of the language of that provision, it appears that it covers all the issues between Oxfam and HMRC regarding the question whether HMRC should have allowed Oxfam credit for a higher amount of input tax under the Approved Method Formula, including both the contract issue and the legitimate expectation issue. The words, "with respect to", in section 83(1) appear clearly to be wide enough to cover any legal question capable of being determinative of the issue of the amount of input tax which should be credited to a taxpayer. The Tribunal's jurisdiction is defined by reference to the subject matter specified in the section, not by reference to the particular legal regime or type of law to be applied in resolving issues arising in respect of that subject matter.
[64] In this case, issues of contract law (under rules of general private law), legitimate expectation (under rules of general public law) and application of general rules of VAT law all arose. The first two issues were the primary issues governing the question whether Oxfam should be credited with more input tax, since Oxfam did not maintain any serious argument against its assessment apart from by reference to those issues.
[68] I do not think that it is a valid objection to this straightforward interpretation of section 83(1)(c) according to its natural meaning that it has the effect that sometimes the Tribunal will have to apply public law concepts in order to determine cases before it. It happens regularly elsewhere in the legal system that courts or tribunals with jurisdiction defined in statute by general words have jurisdiction to decide issues of public law which may be relevant to determination of questions falling within their statutorily defined jurisdiction. No special language is required to achieve that effect. Where they are themselves independent and impartial courts or tribunals (as the Tribunal is) there is no presumption that public law issues are reserved to the High Court in the exercise of its judicial review jurisdiction. So, for example, a county court may have to consider whether possession proceedings issued by a local authority have been issued in breach of its public law obligations (Wandsworth LBC v Winder [1985] AC 461; Doherty v Birmingham City Council [2008] UKHL 57); magistrates courts and the Crown Court may have to decide issues of public law in so far as they arise in relation to criminal proceedings (e.g. to determine if a by-law is a valid and proper foundation for a criminal charge: Boddington v British Transport Police [1999] 2 AC 143 or to determine the validity of a formal instrument which is in some way a necessary foundation for the criminal charge: DPP v Head [1959] AC 83); and employment tribunals may have to decide issues of public law in employment proceedings (e.g. to determine whether a contract of employment with a public authority is vitiated as having been made ultra vires).
[69] I cannot see any good reason for adopting a different approach to the interpretation of the jurisdiction of the Tribunal in section 83 of VATA. The Tribunal is used to dealing with complex issues of tax law. There is no reason to think that it would not be competent to deal with issues of public law, in so far as they might be relevant to determine the outcome of any appeal. That view is reinforced by the fact that the Tribunal may have to deal with complex public law arguments in relation to Convention rights when construing legislation under section 3 of the Human Rights Act 1998, and is recognised by Parliament as being competent to do so.
[72] Am I constrained by authority to come to a different view? There are a number of cases at the level of the Tribunal (e.g. Marks and Spencer plc v Customs and Excise Comrs [1998] V&DR 93, Greenwich Property Ltd v Customs and Excise Comrs, decision 16746 of 9 June 2000, referred to in R (Greenwich Property Ltd) v Customs and Excise Comrs [2001] EWHC Admin 230; [2001] STC 618, at [1]) and in the High Court (Customs and Excise Comrs v Arnold [1996] STC 1271; Marks and Spencer plc v Customs and Excise Comrs [1999] STC 205, 246; Customs and Excise Comrs v National Westminster Bank plc [2003] EWHC 1822 (Ch); [2003] STC 1072) which have adopted a narrower interpretation of section 83(1), and have held that it excludes a general supervisory jurisdiction on public law grounds in relation to HMRC. Some of the authorities are reviewed by Jacob J in National Westminster Bank at [46]-[56] (though the point in relation to domestic public law was conceded before him: see [53]). There is also a Scottish decision of the Second Division of the Inner House of the Court of Session (Customs and Excise Commissioners v United Biscuits (UK) Ltd [1992] STC 325) which held at 326-327, by reference to a decision of the Tribunal in Cando 70 v Customs and Excise Comrs [1978] VATTR 211 and without extensive reasoning of its own, that "The whole area of value added tax guide concessions was beyond the jurisdiction of the tribunal". None of these authorities are directly binding on me, if I am clearly of the view that their reasoning on this point should not be followed.”
32. He then referred to the fact that Jacob J at [49] of his decision in Natwest (which we have set out at paragraph 30, above) found support for the limited jurisdiction of the Tribunal by the dictum of Lord Lane in Customs and Excise Commissioners v J H Corbitt (Numismatists)Ltd and continued at [76]:
[76] “Lord Lane's observation quoted … above has to be read in the context of what was in issue in the case and in the context of his primary reasoning to the effect that on its proper construction section 40(b) of the 1972 Act did not cover an attempt to review a discretionary judgment of the commissioners under the second limb of Article 3(5). The observation was made obiter and without exploring any wider implications it might have. In approving what Neill J had said at first instance about the jurisdiction of the tribunal to decide whether the facts of any particular case came within the scope of a notice published by the commissioners, Lord Lane contemplated the tribunal having jurisdiction in a case which could today be analysed in terms of legitimate expectation (i.e. whether a particular case falls clearly within the terms of a policy published by HMRC). It is clear that section 83 – like section 40 of the 1972 Act - does not confer any general supervisory jurisdiction on the Tribunal, but it seems to me to be a non sequitur to say that the Tribunal has no power to apply public law principles if they are relevant to an appeal against (i.e. a decision either to uphold or overturn) a decision of HMRC which falls within the terms of one of the headings of jurisdiction set out in section 83 (here, HMRC's decision regarding the amount of any input tax which may be credited to Oxfam). In J.H. Corbitt (Numismatists) Ltd Lord Lane considered that the commissioners' decision not to accept the taxpayers' records as sufficient under Article 3(5) was too remote from the immediate decision of the commissioners under section 31 (in relation to which an appeal lay to the tribunal); but in the present case Oxfam's complaints based on breach of contract and breach of legitimate expectation sought directly to impugn HMRC's decision in relation to the input tax to be credited to Oxfam. Therefore, whereas the taxpayer's complaints in that case did not fall within the scope of section 40(1)(b) of the 1972 Act, Oxfam's complaints in this case do fall within the scope of section 83(1)(c) of VATA. (It should also be noted that Parliament responded to the decision in J.H. Corbitt (Numismatists) Ltd by expanding the jurisdiction of the tribunal to allow it to review such prior or remote decisions, by introducing what became section 84(10) of VATA – which tends to reinforce the view that no general exclusion of public law concepts was intended to apply in relation to the appeal provision in section 83).”
33. Applying the approach of Sales J to the present appeal, which is an appeal against a decision of HMRC that falls within the terms of the headings in s.83 VATA, namely s. 83(1)(b) the VAT chargeable on the supply of goods and services and s. 83(1)(p) the amount of an assessment, it would seem that we do have the jurisdiction to consider public law principles that are relevant to this appeal.
34. At [78] Sale J said he was “fortified” in his approach to the interpretation of s. 83 VATA as HMRC indicated that they “did not seek to argue against this construction”. However, Mr Singh made it clear that this was not the case and HMRC did not agree and regarded the comment of Sales J to have been recorded in error.
35. Mr Singh contended that although Sales J, as a judge of the High Court, was not bound by the High Court authorities to which he referred in Oxfam, those authorities are binding on the Tribunal. He also argued we were not bound by the decision in Oxfam as the comments on the Tribunal’s jurisdiction were made obiter as Sales J had already decided the case before making these observations. While it is correct to say that Sales J had already decided to reject Oxfam’s technical tax argument and legitimate expectation argument before commenting in detail on the Tribunal’s jurisdiction it is clear that he had reached his decision on the legitimate expectation argument on the basis that the Tribunal had jurisdiction to hear it saying at [5]:
“I think that the correct approach for me is to treat that argument as a new argument raised on the appeal under VATA with the leave of the court and to rule upon it in the context of that appeal, applying principles of public law. Having given leave for the argument to be raised in the appeal, it is unnecessary for me to grant permission for the same argument to be brought by way of judicial review. (If I had reached a different conclusion about the jurisdiction of the Tribunal and of this court on a VAT appeal, I would have granted Oxfam permission to bring its judicial review claim and would have dealt with it on the substance of the legitimate expectation argument in the same way as I have done below in the context of this appeal).”
36. Therefore the conclusion by Sales J in respect of the Tribunal’s jurisdiction is a necessary part of his reasoning in determining the appeal which accordingly has a binding effect on the Tribunal.
37. This leaves us with two decisions of the High Court, Natwest and Oxfam. In such a situation Mr Singh submitted that we should prefer Natwest as it is part of a long line of authority where the scope of the Tribunal’s jurisdiction has been squarely in issue and subject to full argument unlike in Oxfam where Sales J had made his observations “without the benefit of detailed arguments to the contrary” before him (see at [80] of Oxfam). However, as Sales J noted at [72] in Oxfam, the point in relation to domestic public law was conceded in Natwest (see at [53] of Natwest).
38. As a further reason for preferring Natwest over Oxfam Mr Singh referred us the Tribunals Courts and Enforcements Act 2007 (“TCEA”). This gives the Upper Tribunal the jurisdiction to hear judicial review claims in designated circumstances. Mr Singh pointed out that this was not considered by Sales J and the effect of his decision was to render the statutory framework redundant as both the First-tier and Upper Tribunal could consider public law arguments in the course of hearing an appeal.
39. He also contended that unlike the Administrative Court, which could, for example grant a quashing order, the Tribunal does not have the power to grant an appropriate remedy in response to a public law argument and that this was not considered by Sales J. Similarly, Mr Singh contended, Sales J had not taken account of the procedural safeguards for defendants in judicial review proceedings contained in the Civil Procedure Rules 1998 (“CPR”) such as the application of strict time limits and the requirement for claimants to disclose an arguable case.
40. However, as Sales J observed at [68] (see paragraph 31 above), public law issues can, and do, arise in cases other than those concerned with judicial review and therefore, insofar as they apply to judicial review the provisions of TCEA are not rendered otiose by the Tribunal being able to consider public law issues. Also, although the Tribunal may not have the powers of the Administrative Court, in an appeal against a “best judgment” assessment, such as the present, “it is implicit that it has the power either to set aside the assessment or reduce it to the correct figure” (see Customs and Excise Commissioners v Pegasus Birds Ltd [2004] STC 1509 per Carnwarth LJ at [27]) which would be an appropriate remedy in the present case were we to find in favour of Hanover.
41. Insofar as the procedural safeguards of the CPR are concerned it should be noted that Part 54 of the CPR which requires a claim for judicial review to be made “(a) promptly and (b) in any event not later than 3 months after the grounds to make the claim first arose” and to be accompanied with a detailed statement of the grounds for bringing the claim. However, s. 83G(1) VATA provides that an appeal is to be made to the Tribunal at “the end of a period of 30 days” from the date of HMRC’s decision, a shorter period than required for a judicial review claim. Also the Tribunal Rules require the “grounds for making the appeal” to be included on the Notice of Appeal (rule 20(1)(f)).
42. For these reasons we prefer the decision in Oxfam to that in Natwest and find that the Tribunal does have the jurisdiction to consider the issue of legitimate expectation in the present case.
Estoppel/Legitimate Expectation
43. For Hanover to succeed in its legitimate expectation claim it is necessary to show that by deciding to make the Assessments there has been “unfairness” amounting to an abuse of power (R v IRC ex p Preston [1985] AC 835 at 864) or irrationality (R v Inland Revenue Commissioners ex p Unilever [1996] STC 681) on the part of HMRC.
44. In R v North and East Devon Health Authority, ex p. Coughlan [2001] QB 213 Lord Woolf MR, giving the judgment of the Court of Appeal said, at [57]:
“Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that … the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”
45. We therefore have to consider whether there has been an abuse of power by HMRC and whether the decision to make the assessment was as Simon Brown LJ (as he then was) put it in Unilever at 697, “on the one hand mere unfairness – conduct which may be characterised as ‘a bit rich’ but nevertheless understandable – and on the other hand a decision so outrageously unfair that it should not be allowed to stand” bearing in mind as Sir Thomas Bingham MR said in that case, at 692, the “threshold of public law irrationality is notoriously high.”
46. In reaching our decision we take into account the observation of Peter Gibson LJ in R v Secretary of State for Education ex p Begbie [2000] 1 WLR 1115 at 1124:
“… it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation.”
47. In R v Inland Revenue Commissioners ex p MFK Underwriting Agencies Ltd [1990] 1 WLR 1545 Bingham LJ (as he then was) said, at 1569, that “it is necessary that the ruling or statement relied upon should be clear, unambiguous and devoid of relevant qualification.”
48. Having found (in paragraph 6, above) that Hanover accounted for VAT on the supply of printed material at a zero-rate as this was the practice of Jordans, the “industry leader”; that Mr O’Driscoll had not consulted or relied on any publication of HMCE or HMRC but relied on Hanover’s accountant (paragraph 8, above); and that there had been no written confirmation from HMRC that the approach adopted by Hanover in its VAT accounting was correct (paragraph 12, above) it must follow that as Hanover did not rely on a practice of HMRC it cannot be outrageously unfair for HMRC to have raised an assessment which is inconsistent with paragraph 9.5.4 of Manual V1-3.
49. Even if we had found that Hanover had, either directly or indirectly, relied on the Manual, given the “health warning” (see paragraph 11 above) we consider that the representation at paragraph 9.5.4 was not capable of giving rise to a legitimate expectation as the representation was not devoid of relevant qualification.
50. We therefore conclude that HMRC did not abuse their powers in making the Assessments and as such Hanover’s legitimate expectation claim must fail.
Penalty
51. We turn to the penalty issued under s. 63(1) VATA for making a return which understates Hanover’s liability to VAT by treating the supplies for printed material as zero-rated and not standard rated supplies. Section 63(10) provides that no liability for a penalty will arise where the Tribunal is satisfied that there is a reasonable excuse for this.
52. Mr Haigh contended that by relying on the guidance provided by HMRC Hanover does have a reasonable excuse. However, we have found that Hanover relied on its accountant as to the correct treatment of accounting for VAT and did not rely on the guidance published by HMRC. In the circumstances s. 71(1)(b) VATA applies. This provides:
where reliance is placed on any other person to perform any task, neither the fact of that reliance or any inaccuracy on the part of the person relied upon is a reasonable excuse.
53. Therefore the fact that Hanover relied on its accountant to perform a task, i.e. advise it on the correct method of accounting for VAT on the supply of printed materials, and that the advice received as inaccurate leads us to conclude that Hanover did not have a reasonable excuse for understating its VAT and therefore we confirm the penalty in sum of £6,180.
Summary of Conclusions
54. In conclusion we find that:
(1) as there was a single supply of standard rated company formation services by Hanover, of which the supply of printed material was an ancillary element, the Assessments are confirmed;
(2) the Tribunal has the jurisdiction to consider the public law principle of legitimate expectation;
(3) as Hanover did not rely on the representation contained in paragraph 9.5.4 of HMRC’s Manual V1-3 there has not been “unfairness” amounting to an abuse of power on the part of HMRC and that consequently Hanover’s legitimate expectation claim cannot succeed; and
(4) as Hanover does not have a reasonable excuse the penalty is confirmed in the sum of £6,180.
55. The appeal is therefore dismissed.
56. This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.
JOHN BROOKS
TRIBUNAL JUDGE
RELEASE DATE: 9 June 2010
Authorities referred to in skeletons and not referred to in the Decision
G U S Merchandise Corporation Ltd (1978) VTD 553
Mrs J F Milne & Mrs V Mackintosh T/A Jack and Jill (1981) VTD 1063
R v Inland Revenue Commissioners ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617
Customs and Excise Commissioners v United Biscuits [1992] STC 325
John Dee Ltd v Customs and Excise Commissioners [1995] STC 941
Customs and Excise Commissioners v Arnold [1996] STC 1271
Greenwich Property v Customs and Excise Commissioners [2001] STC 618