United Kingdom VAT & Duties Tribunals Decisions

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You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> Quarriers v Revenue & Customs [2008] UKVAT V20660 (25 April 2008)
URL: http://www.bailii.org/uk/cases/UKVAT/2008/V20660.html
Cite as: [2008] STI 1404, [2008] BVC 2366, [2008] UKVAT V20660, [2008] V & DR 290

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Quarriers v Revenue & Customs [2008] UKVAT V20660 (25 April 2008)

20660

Value Added Tax 1994 Schedule 8, Group 5 Item 2; zero rating; proposed construction of new building by charity; whether intended use of building solely for a relevant charitable purpose; whether services related to the proposed construction of the building fall to be zero-rated; yes; appeal allowed.

EDINBURGH TRIBUNAL CENTRE

QUARRIERS Appellant(s)

- and -

HER MAJESTY'S REVENUE & CUSTOMS Respondents

Tribunal: (Chairman): J GORDON REID Q.C., F.C.I.Arb.

(Members): Mrs Charlotte Barbour, CA., ATII

Mr K Pritchard, OBE., BL., WS

Sitting in Edinburgh on Monday 17 March 2008

for the Appellant(s) Colin Tyre Q.C.

for the Respondents Julian Ghosh, Advocate (Q.C. England &Wales)

© CROWN COPYRIGHT 2008.
 


DECISION

Introduction

1. This is an appeal by Quarriers^[1] (a registered Scottish charity) against a decision of the Respondents ("HMRC") dated 30 March 2007 to the effect that the proposed construction of a new building (an epilepsy assessment centre) will not qualify for zero rating under the provisions of Item 2 of Group 5 of Schedule 8 to the Value Added Tax Act 1994. At the Hearing, which took place at Edinburgh on 17 March 2008, the Appellants were represented by Colin Tyre Q.C., instructed by Glenn Havenhand of Charities VAT Services. He led the evidence of Hugh Walker, the Appellants' Finance and Corporate Services Director. HMRC were represented by Julian Ghosh, Advocate (Q.C. England & Wales) instructed by Shepherd & Wedderburn, Solicitors. HMRC led no evidence. A witness statement had previously been produced by HMRC to which no objection was taken. However, Mr Ghosh indicated that he did not rely on its contents; we therefore make no further reference to it. A Bundle of productions was produced. There was no dispute about the authenticity, and where appropriate the transmission or receipt of its contents.

Statutory Background

2. By virtue of Section 30 of and Schedule 8, Group 5 Item 2 and Note 6(a) to the 1994 Act, the supply, in the course of construction of a building intended for use solely for a relevant charitable purpose, of services related to the construction (with exceptions not relevant for present purposes) are zero-rated. Use for a relevant charitable purpose means inter alia use by a charity otherwise than in the course or furtherance of a business. Business includes trade (Section 94).
3. The significance of this is that a decision to that effect will enable a zero-rating certificate to be issued to the contractors who build the proposed Epilepsy Assessment Centre. In effect, no VAT will be payable by Quarriers in relation to the construction services (and building materials) to be supplied.

Facts

History and Services

4. Quarriers is a company limited by Guarantee. It is a registered charity in Scotland. It is also registered for the purposes of VAT. The charity was originally established in or about the 1880s by William Quarrier. He established an orphanage, and subsequently in about 1906 a "Colony of Mercy" for the treatment of women suffering from epilepsy. A hospital was established at Bridge of Weir. It was taken over by the National Health Service following nationalisation.
5. Quarriers' objects, as set forth in their Memorandum of Association (as amended in 1998) are, in summary, to promote the relief of disability, poverty, illness and suffering and the advancement of education by establishing, maintaining, and conducting residential care and homes for persons suffering from chronic illness or infirmity and by providing medical and other treatment for such persons. The objects also include the provision of care and support for such persons through counselling etc, the provision of accommodation and domiciliary support, nursing, and medical services and vocational training, and the promotion of research. The Memorandum requires, by clause 4, that its net income be applied solely towards the promotion of its objects; no dividend or distribution can be made to its members. In spite of the absence of express reference in its Memorandum of Association, Quarriers is, in short, a charity with a core activity being the provision of services for people with epilepsy. It is the largest provider of epilepsy services in Scotland. It also provides practical support and care for children and adults suffering from a physical or learning disability.
6. In about 1969, Quarriers established Hunter House, a centre for the assessment and treatment of epilepsy sufferers. The services provided there include EEG tests, videotelemetry, and various "outreach" services. Typically, an individual attending for assessment would remain as an in-patient for two to three weeks. A detailed study of his medical history and modus vivendi is carried out. Any seizures are monitored. Quarriers employ nursing, social care and administrative staff. At one time they also employed an epilepsy consultant. More recently the services of consultants employed by the NHS have been engaged and require to be paid for by Quarriers. Before 1969 there were no such centralised facilities in Scotland for the assessment and treatment of epilepsy sufferers. The facilities provided at Hunter House in Scotland are unique. There is no competition for the provision of such services in Scotland. In particular, there is no competition with the National Health Service in any part of the United Kingdom. There is an assessment centre in Buckinghamshire (operated by a charity), but there is no element of competition between it and Hunter House. Nor would there be any such competition between the proposed new centre and any other facility or centre in the United Kingdom. But for Quarriers' activities there would be no such services in Scotland. There is currently no individual or organisation in Scotland providing services similar to those provided at Hunter House either commercially or at all. It is unlikely that such services could be so provided in Scotland either at a profit or with a view to making a profit. The services and supplies made by Quarriers are not of a kind which are commonly made by those who seek to profit from them.
7. Hunter House is a 10 bedded unit based in Renfrewshire. It is the only adult residential assessment centre in Scotland. It specialises in accurate diagnosis and assessment of severe and complex epilepsy. About 300 people are referred there each year by GPs, and Health Boards, through consultants, for assessment and treatment.
8. Hunter House enjoys a reputation for excellence. However, the building, a 1960s style pre-fabricated construction, is nearing the end of its useful life. Its facilities are no longer adequate. It is geographically isolated from other NHS specialist services, particularly the Institute of Neurological Sciences ("I.N.S.") at the Southern General Hospital, Glasgow. The location of Hunter House is seriously inconvenient for patients and staff. It has no out-patient facilities. It cannot provide 24 hour medical care or critical emergency cover on-site.

Funding

9. Quarriers' main sources of funding each year are local authority fees, local authority/government grants and DSS fees from local authorities throughout Scotland (93% of income). About 7% comes from donations from various sources. Quarriers retain sufficient financial strength to secure current services, and to make adequate provision for current and long-term needs for reinvestment in all existing projects.
10. In practice, the aim is to break even each year. Rates are set for the epilepsy services provided and submitted to Health Boards. These rates are based upon an assumption that there will be an 80% occupancy level throughout the financial year. Quarriers require to demonstrate to Health Boards their costs in providing services. Health Boards do not accept either a charge for management or for the capital costs of running the epilepsy centre. The Health Boards either accept the proposed rate or propose a lower rate. Quarriers have little choice but to accept any proposed lower rate. The cost of the epilepsy services is in practice effectively subsidised by Quarriers in furtherance of their overall objective of the alleviation of the suffering of epilepsy. Health Boards and other users are not paying a commercial rate for the epilepsy services provided by the Appellants through Hunter House. The number of referrals each year is not within the direct control of Quarriers. They cannot and do not actively seek referrals, although they can to some extent influence the number of referrals by, for example, intimating to appropriate consultants from time to time that there are vacancies (i.e. beds available for in-patient assessment). There are no referrals from private hospitals and Quarriers do not accept "private" patients.
11. Between about 2001 and 2008 (the figures for 2008 are estimated) there has been an overall deficit of about £291,600 in relation to the cost of and the charges for the services provided at Hunter House. The activities undertaken there and the services provided are not profit led. In carrying out these activities and providing these services, Quarriers are carrying out its charitable functions or at least some of them which lie at the heart of its very existence.
12. Part of the current funding of the facilities at Hunter House comes from Health Boards in Scotland either on an ad hoc basis or, in the one case, an annual contract. The annual revenue received by Quarriers is uncertain and depends largely upon the resources which the various Health Boards are prepared to commit to the services provided by Quarriers. Health Boards are not prepared to pay the full cost of the provision such services.
13. Production 16 contains two invoices sent by Quarriers to Lanarkshire Health Board and NHS Greater Glasgow and Clyde respectively. Each is described as a "Sales Invoice" and has the usual invoice number, and tax point date. The former is based on the monthly sum due in terms of a contract between Quarriers and the Board. This is the only contract between Quarriers and a Health Board. The latter is specific to a patient and the particular services provided; the unit price for each service is given.
14. Details of the contract with Lanarkshire Health Board are summarised in a Schedule [production 17] to the contract although the documentation produced appears incomplete. The Schedule provides inter alia that Quarriers will deliver the required services within the "Contract Value of £150,000 for 2006/7." This sum is subject to adjustment in later years to include an inflation uplift. If services of the value of a lower total sum are provided in that year, Quarriers keep the difference but the subsequent year is based on the actual "out-turn" for the previous year and so on with provision for averaging over three financial years in due course.

Proposed Epilepsy Centre

15. Quarriers propose to replace Hunter House with a purpose-built national epilepsy centre relocated near to and fully integrated with the I.N.S. It is proposed that the new centre, which would be owned by Quarriers, would provide hi-tech diagnostic facilities (including EEG recording facilities and EEG ambulatory equipment), treatment, therapeutic support, advice and information to about 350 people with epilepsy each year. Patients would live in a comfortable home environment for up to about eight weeks during their assessment. The new building would include reception areas, waiting rooms, consultation areas, staff offices, 12 residential assessment beds including a video-telemetry suite. There will also be provision for research facilities, a meeting/conference room, sleep-over areas for relatives and administrative offices.
16. It is proposed that Quarriers will manage and staff the new centre. They propose to employ a medical director who would be responsible for clinical services. He would report to a Quarriers service director. A unit manager would have operational responsibility for all nursing, support worker and counselling staff. It is proposed that a clinical consultant service would be an integral part of the services provided by the I.N.S.. Quarriers anticipate commencing building operations in about April 2009. The estimate of the capital costs is currently about £5m. This is to be funded to the extent of about 21% by Quarriers through its own resources and disposal of land and assets with the balance from fund raising. They have prepared a detailed Business Plan for the project dated 2006 [Production 15]. Mr Walker made a significant contribution to the preparation of the Business Plan.

HMRC Decision

17. By letter dated 30 March HMRC responded to Quarriers' request for guidance on the determination of the correct VAT treatment applicable to the proposed construction of a new epilepsy centre. HMRC's decision was that the construction works would not qualify for zero rating. HMRC concluded that the works were not for a relevant residential purpose (this is no longer in issue); nor were they for a relevant charitable purpose, because the supplies to be made at the new epilepsy assessment centre, would, according to HMRC, be by way of business activities. This view was largely based on a consideration of the indicators in C&EC v Lord Fisher 1981 STC 238 (mentioned below).
18. The decision was reconsidered by an Appeals and Reconsideration Officer. By letter dated 21 August 2007, she upheld the original decision. She concluded that Quarriers provided services to Health bodies for a charge and that this was therefore a business activity.

Grounds of Appeal

19. The only ground is that the running of an epilepsy assessment centre by Quarriers is a non-business activity. That was the essential issue argued before us.

Submissions

(a) HMRC

20. Mr Ghosh identified the issue as whether Quarriers' supplies to the NHS are in the course or furtherance of a business. He submitted that the notion of a business was carrying on an economic activity. The notion of an economic activity was where a person supplies services for a consideration. That is what Quarriers did and there was a link between the services supplied and the invoices raised. He argued that a supplier supplied goods or services in the course or furtherance of a business when he engages in the market place i.e. he decides whether or not to make the supplies; he sets the price; he fructifies his own purposes not somebody else's, and he supplies on his own account. This is to be contrasted with non-economic activities such as (i) personal pleasure, (ii) where the supplier is the delegate of public law functions as in ICAEW v C&CE 1999 STC 398; there, the supplier is not engaging in the market place but is administering a regulatory function; (iii) mere investment; exploitation of rights of ownership rather than engaging in the market place; no goods are supplied to a customer; and (iv) where a supplier makes a concession such that he cannot aptly be said to be engaged in the market place as in EC Commission v France 1988 ECR 4797 (ECJ). Mr Ghosh accepted, however, that determining whether there was a concession was a question of degree. He submitted that the application of the test in France at paragraphs 54(ii) & (iii) of C&CE v St Paul's Community Project Ltd 2005 STC 95 was erroneous.
21. Here, Quarriers have a defined customer base; they engage in the market place (by making supplies to the NHS) and have chosen to make supplies in pursuit of their charitable objects; it was not undertaking a function of the NHS. Rather, they were filling a gap left by the NHS. The absence of competition was not relevant. You could simply be first to enter the particular market. Here they run their operation with financial prudence and have a Business Plan in relation to the proposed Centre. The pricing archaeology cannot be described as a concession.
22. The conclusion that Quarriers are carrying on a business is consistent with C&CE v Yarburgh's Trust 2002 STC 207 and C&CE v St Paul's Community Project Ltd. The application of the predominant concern test was another way of saying you are engaging in the market place. If you behave like a supplier, then you are carrying on a business. In Yarburgh the supply was to the parents who controlled the supplier (at paragraph 30). He also submitted that the capital costs and funding of the proposed epilepsy centre were not relevant.
23. Mr Ghosh also referred us to C&EC v Morrison's Academy Boarding Houses Association 1978 STC 1 at 6 and 9, C&EC v Lord Fisher 1981 STC 238 at 248, and Donaldson's College 2005 (Chairman TG Coutts Q.C.) EDN/05/12. Page 9.

(b) Quarriers

24. Mr Tyre submitted that the fact that money was paid or a benefit or consideration received was not necessarily indicative of a business being carried on. By business is meant an economic activity being carried on. The Appellants relied on the predominant concern test derived from C&EC v Morrisons Academy Boarding Houses Association 1978 STC 1, which had stood the test of time. The test advanced by Mr Ghosh namely engaging in the market place was unsound. If it meant supplies for a consideration, that was not the test; if it is another way of expressing the predominant concern test, then it adds nothing to the Morrisons Academy test. Here, there is no market place. Yarburgh was an example of being predominantly concerned with the making of supplies for something other than consideration. Here, the purpose i.e. the predominant concern of the whole circumstances surrounding the transactions under scrutiny must be considered. Mr Tyre also referred us to St Paul's Community Project Ltd and Donaldson's College v HMRC 6/9/05 EDN/05/12 (Chairman TG Coutts Q.C.). The activities carried on by Quarriers were not economic; they provided a unique service which was not financially independent. The service was subsidised in furtherance of its charitable objects. There was no direct link between the cost of the services provided to a particular individual and the charges made to the Health Board or Local Authority.

Discussion

(a) Evidence

25. There was little or no dispute on the evidence. We found Mr Walker to be reliable and credible. There was no suggestion to the contrary. He gave his evidence in a clear, articulate and generally comprehensive manner. We have based our findings-in-fact on his testimony and the documents produced some of which he spoke to and amplified.

(b) The Law

26. The term business is fundamental to the operation of VAT in the United Kingdom. It is derived from the phrase economic activity in what is now Article 9 of the Directive 2006/112/EC. Liability for registration depends primarily upon the value of supplies made in the course or furtherance of a business. Supplies are taxable when made in the course or furtherance of a business. The legislation contains inclusive and exclusive definitions but none is exhaustive (e.g. section 4(1), (2), 94(1)(2)(a)(b)(4)-(6) of the 1994 Act). The existence of a business for VAT purposes must depend upon the activities carried on whether examined individually or viewed as a whole. An activity which is no more than an activity for pleasure and social enjoyment plainly does not fall within the meaning of business.^[2] It is also plain from the authorities that business is not necessarily confined to commercial or profit-making undertakings. The existence or absence of a profit motive is not significant.^[3] Moreover, the operation of an activity on prudent financial principles is but a pointer in the direction of the activity being classified as a business because an activity may be run inefficiently or in a financially reckless manner, but may still amount to a business for the purposes of VAT.
27. The emphasis in the Crown's argument in Morrison's Academy Boarding Houses Association ...where the Appellants there were also a charity,^[4]) (and the Court's reasoning) was on activities which had the essential features of activities which are commonly carried out by persons actively pursuing an occupation, profession or vocation whether or not commercially for profit.^[5] In that case, the activities of the Appellants were the provision of board and lodging, an activity commonly pursued for profit. Lord Cameron described the activities as essentially a business activity of a very usual and normal kind having every mark of a business activity; providing goods and services which are of a type provided and exchanged in the course of everyday life and commerce.^[6] Lord Cameron also emphasised the fact that the Appellants were necessarily competing in the market with other persons and concerns offering precisely similar services to the same clients or customers. A similar analysis of Morrison's Academy Boarding Houses Association is to be found in Riverside Housing Association Ltd v HMRC.^[7]
28. By contrast, the use of the proposed new epilepsy centre is unique and has every mark of a social and health service far removed from the mark of a business activity. There is no market and there is no competition.
29. In the light of the Court's reasoning in Morrison's Academy Boarding Houses Association it must be of significance to determine whether the supplies made or to be made by the Appellants in the course of their activities are of a kind which, subject to differences of detail, are commonly made by those who seek to profit by them. If such supplies are uncommon and rarely made for profit, and there is no general market in which such supplies may be purchased, then that seems to us to be a strong factor indicating that the activity is not in the nature of a business. We recognise, of course, that the fact that there is only one supplier of a product does not necessarily negate the existence of a market or the classification of that supply as being made in the course of a business.
30. The supply of services by a statutory body, performing a statutory function under a particular legal regime imposing restrictive conditions (not applicable to private traders) would not constitute supplies in the course or furtherance of a business.^[8] Thus, in ICAEW, the Institute, inter alia, performed certain statutory regulatory functions (for the protection of the public by supervising and maintaining the standards of practitioners in the financial services field) by charging fees for licences issued to insolvency practitioners amongst others. The Institute sought to classify its activities as a business in order to recover input tax on goods and services supplied to the Institute. The Tribunal, the Court of Appeal and the House of Lords dismissed the Institute's appeals. Although the present appeal is not concerned with the supply of services by a statutory body it is relevant to note that the House of Lords approached the issue by considering whether as a matter of ordinary language what the Institute was doing was an activity of the professions for the purposes of the art 4(2) of the Sixth Directive; their Lordships further held that the Institute was not "in any real sense" a trading or commercial activity which might justify it being described as "economic" and the fact that fees are charged for the granting of the licences (to be assessed overall on a break-even basis) does not convert it into one"^[9] Lord Slynn (delivering the only reasoned speech) was content to equiperate economic activity with business; and pointed out that the activities must be of an "economic nature";^[10] he referred to the six indiciae in Lord Fisher with apparent approval and appeared to accept their applicability as a useful tool for determining whether an activity amounted to a business for the purposes of the VAT legislation.
31. In the present appeal we find it difficult to classify the intended use of the proposed epilepsy centre as in any real sense a trading or commercial activity which might justify it being described as economic.
32. We attach little weight here to the argument that the fact of common control, as in Yarburgh, points to there being no business. One need only refer to the common occurrence of inter- company supplies where one company is controlled by the other.
33. Had the evidence been to the effect that the new Centre would contain a shopping mall even if occupied solely by "charity" shops the position might have been different.^[11] A charity shop run to make a profit and thus raise funds for a charity is an economic activity and therefore a business. While the object is to benefit the charity, the running of the shop as such is not a charitable activity. It has every mark of a business, is in competition with other shops; it provides goods and services of a type regularly supplied in the course of everyday life. However, there was no such evidence.
34. In St Paul's Community Project, the issue was whether the use of part of a building constructed on behalf of a charity and used as a children's day nursery, for which fees (lower than the going commercial rate) were charged by the charity to cover its costs, was a business activity. The Tribunal decided that the use of parts of the building for the purposes of running a day nursery was a use which was 'otherwise than in the course or furtherance of a business' within the meaning of note (6) to Item 2 of Group 5 of Schedule 8 to the 1994 Act, and accordingly, the relevant works were zero-rated. That decision was upheld on appeal to the High Court. There, Evans-Lomb J observed that the payment of fees by the parents was an important if not the most important consideration which the Tribunal had to take into account.^[12] However, he noted that the Commissioners correctly conceded that this consideration was not conclusive.
35. In Riverside HA v HMRC^[13] the issue was whether a charity whose principal activity was the provision of social housing for those in need by reason of physical or mental illness, disability or other financial disability, was entitled to the issue of a certificate of zero-rating in respect of the construction of part of its new divisional office. The Tribunal dismissed the appeal against the Commissioners' refusal to issue a certificate and that decision was affirmed in the High Court. Lawrence Collins J reviewed the authorities including ICAEW, Yarburgh and St Paul's and concluded that the Tribunal was entitled to come to the conclusion reached; he too would have reached the same conclusion. He did not adversely comment on the decisions in Yarburgh or St Paul's and noted, as we have done, that the House of Lords appeared to have accepted the approach in Lord Fisher.^[14]
36. The operation of the playgroup in Yarburgh and the day nursery in St Paul's were by contrast charitable. In St Paul's. Evans Lomb J formulated what he regarded as the test gleaned from Lord Slynn's speech in ICAEW as follows:-^[15]

'was it [i.e. the activity] (a) a "serious undertaking earnestly pursued"; (b) pursued with reasonable continuity; (c) substantial in amount; (d) conducted regularly on sound recognised business principles; (e) predominantly concerned with the making of taxable supplies to consumers for a consideration; and (f) such as consisted of taxable supplies of a kind commonly made by those who seek to make profit from them.'

37. In many cases (a), (b), (c) and (d) will apply. It is reasonably plain and common sense that any business is normally a serious undertaking earnestly pursued with a reasonable degree of continuity.^[16] However, that does not take one very far in the present context.^[17] The resolution of the issue may turn on (e) and/or (f). (e) and (f) will often stand or fall together.
38. On the authorities to which we have been referred, the issue whether a person is carrying on a business will often ultimately depend upon whether its predominant concern is making taxable or exempt supplies to consumers for a consideration. This may be another way of objectively identifying the intrinsic nature of the enterprise in question. It is not an exercise in determining the intention of the entity concerned, the term economic activity is very wide and is objective in character. The ascertainment of the predominant concern may require the examination of a wide range of facts and circumstances. On the authorities, the following appear to be relevant to the determination of the issue in the present appeal.
39. The Appellants provide specialist services for those unfortunate people who suffer from epilepsy. They fill a gap in the provision of national health services in Scotland. As in Donaldsons, they fulfil a national need. These activities are predominantly if not exclusively concerned with and lie at the heart of its charitable purposes. Such activities are not carried out commercially by anybody for profit in Scotland at all. This is also probably the case in England and Wales.
40. In these circumstances, the activities in question are not in any real sense a trading or commercial activity which might justify them being described as economic. The intended use does not have the mark of a business activity far less an everyday business activity. This is not a case of an undertaking being first to enter the market and which is one step ahead of everyone else in the business community.
41. The sums received for the services provided make a contribution towards the cost of providing those services. They are not determined by reference to going rates in the market, as there is no market as such, but essentially by reference to what Health Boards are willing to pay for the unique service provided by Quarriers. The question whether the sums charged are a concession as set forth in EC Commission v France does not even arise as there was no evidence before us of what the commercial rate might be. In light of the evidence which we heard that is not surprising as no other entity provides the services for which the proposed new epilepsy centre is intended to be used.
42. There is no consistent direct link between the cost of providing services to a particular individual and the charge made to the Health Board or Local Authority. As in ICAEW the fact that charges are made to defray in part the cost of providing the service does not convert the activities into a business for the purposes of VAT any more than it deprives the Appellants of their overall charitable status. In essence, as Patten J put it in Yarburgh^[18] –Can the intended use of the proposed new epilepsy centre by Quarriers seriously be regarded as doing anything more than the carrying out of its charitable functions?
43. The Appellants are not in competition with any other entity. A favourable or unfavourable decision will not distort competition or the principles of fiscal neutrality.^[19]
44. In the foregoing circumstances, we conclude that the intended use of the proposed new epilepsy centre will not in any real sense be a trading or commercial activity which might justify it being described as "economic" or a use in the course or furtherance of a business.

Disposal

45. We hold that the proposed new epilepsy centre is intended for use solely for a relevant charitable purpose within the meaning of Item 2(a) of Schedule 8 to the Value Added Tax Act 1994. Accordingly the construction costs (other than the services of an architect, surveyor or any person acting as a consultant or in a supervisory capacity) will qualify for zero-rating.
46. It was agreed that if the Appellants were successful they should be entitled to expenses. We accordingly find the Respondents liable to the Appellants in the expenses of, incidental and consequent upon the appeal on the Court of Session scale on a party and party basis, as may be agreed or, failing agreement, as may be taxed by the Auditor of the Court of Session. We also certify this appeal as suitable for the employment of Senior Counsel. Both parties saw fit to instruct eminent and distinguished tax Counsel from whom we derived considerable assistance.
J. GORDON REID Q.C., F.C.I.Arb. CHAIRMAN
RELEASE: 25 APRIL 2008

EDN/07/120

Note 1   Erroneously designed as Quarrier’s Homes Quarrier’s Homes in the appeal documents by the Appellant’s representative.    [Back]

Note 2   C&E Comrs v Lord Fisher 1981 STC 238C&E Comrs v Lord Fisher 1981 STC 238    [Back]

Note 3   Morrison’s Academy per Lord President EmslieMorrison’s Academy per Lord President Emslie    [Back]

Note 4   1978 STC 1 at page 41978 STC 1 at page 4    [Back]

Note 5   1978 STC 5-6 per Lord president Emslie; Lord Cameron at page 9    [Back]

Note 6   At 1978 ST at page 9    [Back]

Note 7   2006 STC 2072 at paragraphs 70 and 71- a case to which we were not referred but seems to us to be worth mentioning.    [Back]

Note 8   Edinburgh’s Telford College v C&CE Comrs 2006 STC 1291Edinburgh’s Telford College v C&CE Comrs 2006 STC 1291    [Back]

Note 9    At 1999 STC 398 at page 404; see also C&EC v Lord Fisher 1981 STC 238 at 248 quoting C&EC v Lord Fisher 1981 STC 238 at 248 quoting Rolls v Miller 188427 Ch D 71 at 85-86    [Back]

Note 10   At 402    [Back]

Note 11   There was no such evidence.    [Back]

Note 12   Paragraph 27    [Back]

Note 13   2006 STC 2072;    [Back]

Note 14   Paragraph 75    [Back]

Note 15   At paragraph 49    [Back]

Note 16   Morrison’s Academy per Lord President Emslie and Lord CameronMorrison’s Academy per Lord President Emslie and Lord Cameron    [Back]

Note 17   C&E Comrs v Lord Fisher 1981 STC 238 at 246C&E Comrs v Lord Fisher 1981 STC 238 at 246    [Back]

Note 18   2002 STC 207 paragraph 30    [Back]

Note 19   See St Paul’s at paragraph 51St Paul’s at paragraph 51    [Back]