Upper Tribunal

These decisions replaced the VAT tribunal as from 2009.  These decisions are appeals from the First-Tier Tribunal.

Recent decisions

Revenue & Customs v Jigsaw Medical Services Ltd [2018] UKUT 222

  • whether supplies of ambulance services exempt or zero rated as transport services – held exempt – first instance: [2017] UKFTT 537

Mariott Rewards LLC and Whitbread Group PLC v Revenue and Customs [2018] UKUT 129

  • “points” based rewards scheme – whether payments made to redeemers third party consideration for supply of rewards – no – whether redeemers made separate supplies to operator of scheme – yes – whether those separate supplies relate to immovable property or constitute advertising services – no – appeals dismissed

Nestle UK Ltd v Revenue and Customs [2018] UKUT 29

  • whether banana and strawberry flavoured Nesquik exempted as power for the preparation of beverages – held standard rated

All decisions

Airtours Holidays Transport Ltd Decision [2010] UKUT 404

  • input tax, tripartite agreement entered into y respondent, financial institutions and PricewaterhouseCoopers whose fee was paid by respondent, whether input tax to respondent

HMRC v Arkeley Limited (in liquidation) [2013] UKUT 393

  • VAT – zero-rating – evidence of export of goods – whether First-tier Tribunal erred in law in finding that the conditions for zero-rating were met in respect of certain invoices – Principal VAT Directive, articles 131 and 146 – VATA 1994, s 30 – VAT Regulations 1995, reg 129 – VAT Notice 703 – appeal dismissed

Benridge Care Homes Ltd v HMRC [2012] UKUT 132

  • VAT returns lodged claiming refund of input tax but understating output tax – whether open to Revenue to reduce the input tax to nil in the returns

Birmingham Hippodrome Theatre Trust Ltd v HMRC [2013] UKUT 57

  • VAT – claim for repayment of overpaid output tax where irrecoverable repayments had been wrongly made of input tax attributable to other fiscal years – claim denied and appeal dismissed
  • VALUE ADDED TAX – evidence of export – whether First-tier Tribunal applied correct legal test – despite incorrect statement, yes – whether tribunal’s findings of fact supported by evidence – yes – appeal dismissed

British Association of Leisure Parks, Piers and Attractions Ltd v Revenue and Customs [2013] UKUT 130

  • Value Added Tax – claim to repayment of output tax allegedly overpaid – whether services provided by Appellant Association to its members exempt under Value Added Tax Act 1994, Schedule 9, Group 9, Item 1(d) – whether primary purpose of Association was lobbying – whether any exemption under Item 1(d) disapplied by Note 5 – whether membership of Association restricted in accordance with Note 5 – whether defence to repayment of allegedly overpaid output tax on the ground of unjust enrichment

HMRC v Brockenhurst College [2014] UKUT 46

  • VAT – whether supplies of catering and entertainment services to members of the public are exempt as supplies closely related to the provision of education – Sixth VAT Directive, Article 13A(1)(m); Principal VAT Directive, Article 132(1)(i) – VATA 1994, Sch 9, Group 6, Item 4 – appeal dismissed

Revenue and Customs v Coinstar Limited [2017] UKUT 256

  • self-service kiosks at supermarkets – exchanging coins for a voucher redeemable at the supermarket – whether exempt supply of financial services within Group 5 Schedule 9 Value Added Tax Act 1994 – appeal  [2016] UKFTT 610 (TC) dismissed

Colainagrove Ltd v Revenue & Customs [2015] UKUT 2

  • whether veranda sold with a static caravan is zero-rated as part of a single supply – appeal allowed

Conor Robinson v Revenue and Customs [2017] UKUT 383

  • assessment in respect of disallowed input tax-whether FTT erred in finding HMRC entitled to disallow right to deduct in the absence of evidence of receipt by the appellant of a taxable supply -no- appeal dismissed

Deliverance Ltd v HMRC [2011] UKUT 58

  • zero–rating – food supplied for delivery–whether supplied above ambient temperature for the purpose of enabling it to be consumed hot or of demonstrating that it is freshly cooked- appeal allowed on the basis of the latter

HMRC v Diana Bryce – The Barn [2010] UKUT 26

  • Single or multiple supplies – test where no single principal supply – land exemption – supply of hall with play equipment for children s parties

Revenue & Customs v DPAS Limited [2015] UKUT 585

  • Exemption – whether dental payment plan administrator provided services to patients for consideration – whether services exempt transactions concerning payments or transfers or standard rated debt collection – whether to refer questions to CJEU or stay case pending decision in Bookit II and NEC – if exempt whether change in contractual arrangements from 1 January 2012 abuse of law – appeal allowed in part and stayed – first instance – [2013] UKFTT 676

HMRC v The British Disabled Flying Association [2013] UKUT 162

  • VAT – zero rating – aircraft for use by disabled persons – whether aircraft modified for use by disabled persons after manufacture are ” designed” for such use – held yes but one aircraft not so designed at time of supply – whether Respondent is a ” relevant establishment” for the purposes of Group 15 to Schedule 8 VAT Act 1994 – held no – whether Tribunal has jurisdiction to decide whether appellant had legitimate expectation – held no – appeal allowed in relation to one aircraft and dismissed in relation to the other

HMRC v Esporta Limited [2013] UKUT 173

  • VAT –whether First-tier Tribunal erred in concluding that membership fees recovered after access to club’s facilities had been denied due to non-payment were not consideration for a supply but compensation – held yes – appeal allowed

HMRC v European Tour Operators [2012] UKUT 377

  • VAT – Exempt services – Item 1(d) of Group 9 of Schedule 9 VATA 1994 – Whether membership subscriptions of a trade association constitute exempt supplies – Case remitted to First-tier Tribunal for further findings of fact – Appeal allowed to that extent

Finance & Business Training Ltd v Revenue & Customs [2013] UKUT 594

  • Value Added Tax – whether services provided by Appellant exempt under Value Added Tax Act 1994, Schedule 9, Group 6, Item 1 – whether Appellant was “an eligible body” within Note (1)(b)- whether Appellant was a college or institution of the University of Wales – whether possible to be an eligible body in relation to some of the Appellant’s activities and not an eligible body in relation to the remainder of its activities

HM Revenue & Customs and Ford Motor Co Ltd v Brunnel Motor Co Ltd [2013] UKUT 6

  • Value Added Tax – Whether original agreement for supply of cars discharged by subsequent agreement – Question of fact remitted by the Court of Appeal for determination by the First-tier Tribunal – Whether material error of law in determination of that question by the FTT – No – Appeal dismissed

Revenue and Customs v Frank A Smart & Son Ltd [2016] UKUT 121

  • input tax – purchase of Single Farm Payment Entitlement units – whether used or to be used for the purposes of the taxable person’s economic activity – whether direct and immediate link with the taxable person’s business – yes – appeal refused

General Healthcare Group Ltd v Revenue and Customs [2016] UKUT 315

  • whether the supply to patients of medical or surgical appliances such as artificial hips and pacemakers a single composite supply of exempt medical services or separate supplies of zero rated prosthesis and exempt medical services – appeal dismissed

Glaxosmithkline Services Unlimited v HMRC [2011] UKUT 432

  • Zero-rating – Whether “Lucozade Sport” zero-rated as food or standard-rated as beverage

HMRC v GMAC UK Plc [2012] UKUT 279

  • VAT Bad debt relief – Insolvency Condition, Property Condition – whether valid under EU law – No; whether repayment claim resulted in a windfall contrary to EU law – need for reference – Yes; Time limit for making claims – whether time-barred as a result of overriding provisions of EU law

ING Intermediate Holdings Ltd v Revenue and Customs [2016] UKUT 298

  • deductibility of input tax- whether provision of deposit accounts involved a supply by bank – whether supply was for consideration capable of quantification- whether investment by bank of funds received was an economic activity

Intelligent Managed Services Ltd v Revenue and Customs [2015] UKUT 0341

  • whether transfer of a business to a company that was a member of a VAT group was a transfer of a going concern (TOGC) – after transfer supplies made only to other group company

Revenue & Customs v Jigsaw Medical Services Ltd [2018] UKUT 222

  • whether supplies of ambulance services exempt or zero rated as transport services – held exempt – first instance: [2017] UKFTT 537

Leeds City Council v HMRC [2013] UKUT 596

  • VALUE ADDED TAX – claim for repayment of VAT – failure of UK to implement Article 4.5 of Sixth VAT Directive – erroneous guidance issued by HMRC – curtailment of limitation period for claims – section 80 VAT Act 1994 – whether compatible with EU legal principles – appeal dismissed

London College of Computing Ltd v HMRC [2013] UKUT 404

  • VAT – Exempt supplies – education – whether provided by “eligible body” – whether college of a university – tests to be applied – appeal dismissed

Loughborough Students Union v HMRC [2013] UKUT 517

  • VAT – exemptions – cultural services – bodies managed and administered on an essentially voluntary basis – student union governed by council – salaried sabbatical officers of executive committee as voting then non-voting members of council – whether FTT entitled to find student union not managed and administered on an essentially voluntary basis – yes

Marcus Webb Golf Professional v HMRC [2012] UKUT 378

  • VAT – exemption in Item 2 of Group 6, Schedule 9, VATA 1994 – whether tuition supplied by an individual teacher acting independently of an employer – relevance of principle of fiscal neutrality – appeal dismissed

Matthew Davies Special Occasions 2XL Limos v HMRC [2012] UKUT 130

  • Value Added Tax – whether transport supplies rendered with stretched limousines, originally designed to carry 10 people, but adapted to carry only 9 people, were zero-rated – Appeal dismissed

Revenue and Customs v Metropolitan Intenational Schools Ltd [2017] UKUT 431

  • distance learning courses – classification of supply – whether supply of books within item 1 Group 3 Schedule 8 VATA 1994 – whether single supply of educational services

HMRC v The Honourable Society of Middle Temple [2013] UKUT 250

  • VAT – grant of lease of commercial premises with provision of cold water – whether single supply of leasing of immovable property or independent supplies of property and water – single supply of immovable property – appeal allowed
  • case analysis

N & M Walkingshaw Ltd v Revenue and Customs [2015] UKUT 123

  • sale of motor car on part-exchange terms – price of part-exchange car includes ‘over-allowance’ – value of supply of replacement car – periods prior to 1 August 1992 – application of ‘open market value’ – whether such value of replacement car should reflect a discount on a cash sale equivalent to the amount of the over-allowance – no

Revenue & Customs v National Exhibition Centre [2015] UKUT 23

  • VAT – exemption – financial services – booking fees on concert ticket purchases – whether for “card processing services – appeal dismissed on supply issue and exemption issue referred to ECJ

Nestle UK Ltd v Revenue and Customs 2018] UKUT 29

  • whether banana and strawberry flavoured Nesquik exempted as power for the preparation of beverages – held standard rated

Revenue & Customs v Newey (t/a Ocean Finance) [2015] UKUT 300

  • scheme to avoid irrecoverable input tax on supplies of advertising services to loan broking business – establishment of loan broking business in Jersey with processing services provided by UK business – whether UK business made supplies of loan broking services – whether scheme an abuse – F-tT decision holding supplies of advertising services made to Jersey business and no abuse – HMRC’s appeal dismissed

HMRC v Abdul Noor [2013] UKUT 71

  • VAT – whether first-tier Tribunal had jurisdiction to consider legitimate expectations to recover pre-registration input tax on supply of services – No- decision of First-tier Tribunal allowing taxpayer’s appeal reversed

Norseman Gold Plc v Revenue and Customs [2016] UKUT 69

  • input tax –whether Appellant carrying on economic activity – UK management company providing management services to overseas subsidiaries – no agreement on amount of consideration to be paid by subsidiaries – whether taxable supplies made – no – appeal dismissed

Powa (Jersey) Ltd v HMRC [2012] UKUT 50

  • VALUE ADDED TAX – input tax – MTIC and contra-trading – whether connection to fraudulent trading as condition of denial of right to deduct input tax requires privity of contract with fraudulent trader – test in Kittel and Recolta Recycling – whether English mistranslation of French text of the judgment – whether to refer question to ECJ – application of Court of Appeal judgment in Mobilx

Revenue and Customs v Praesto Consulting UK Limited [2017] UKUT 395

  • input tax – legal services provided in connection with civil claims against a director – whether supplied to the taxable person – whether direct and immediate link to taxable activities – appeal allowed

HMRC v The Rank Group Plc [2012] 347

  • whether imposing VAT on gaming machines a breach of the principle of fiscal neutrality

Reed Employment Ltd v HMRC [2013] UKUT 109

  • Value added tax (VAT) – what constitutes a new claim as compared to an amended claim under VATA section 80 – whether HMRC can rely on a defence of unjust enrichment in relation to claims made after 26 May 2005 – application of EU principles of effectiveness, equal treatment and fiscal neutrality

Sally Moher at Premier Dental Agency v HMRC [2012] UKUTB2

  •  VALUE ADDED TAX – exemptions – appellant engaged dental nurses and supplied them as temporary staff to dentists – whether appellant made supplies of staff or of medical treatment – supplies of staff – supplies standard-rated – appeal dismissed

Scandico Ltd v Revenue and Customs [2017] UKUT 467

  • Purchase of Apple iPhones by Appellant without receiving VAT invoice – Whether HMRC’s refusal to accept other evidence, in the absence of valid VAT invoices, to constitute sufficient evidence of the supply of the phones to the Appellant was reasonable – approach to be adopted by First-tier Tribunal in such appeals – appeal dismissed.

Scottish Football League v HMRC [2013] UKUT 160

  • Value Added Tax; supply of goods; business gift; disposal otherwise than for a consideration; supply by football association of end of season medals to league division points champion clubs; whether output tax payable on the value of such medals – yes; or whether accounted for by output on membership, sponsorship, copyright royalties, and/or broadcasting fees; no; Value Added Tax 1994 Schedule 4, paragraph 5; Principal VAT Directive 2006/112/EC Article 16

Sub One Limited T/A Subway v HMRC [2012] UKUT 34

  • Value Added Tax – zero-rating – Value Added Tax Act 1994 Schedule 8 Part II Group 1 Note (3)(b)(i) – food – toasted sandwiches and meatball marinara – whether heated for the purposes of enabling it to be consumed at temperature above ambient air temperature – whether legislation and/or interpretation and/or application thereof infringed principle of fiscal neutrality – whether FTT findings irrational – application to adduce further evidence – for my case analysis click here
  • Case analysis

Tanjoukian v HMRC [2012] UKUT 361

  • VAT – Sale of vehicle registration marks – Whether transaction zero rated as an international supply – Place of supply in UK – Whether transaction involving a transfer or assignment of rights within para 1 of schedule 5 to VATA 1994 – Whether the DVLA a taxable person – Whether sale of registration marks by the DVLA an economic activity – Appeal dismissed

Revenue & Customs v The Open University [2015] UKUT 263

  • whether services supplied by BBC to Open University exempt under Article 13A(1)(i) of the Sixth VAT Directive – appeal on law from decision of First-tier Tribunal that services were exempt – was BBC a body governed by public law? – no – did BBC have educational aim required by Article 13A(1)(i)? – yes – was BBC other organisation defined by United Kingdom as having similar objects? – yes – appeal dismissed

HMRC v UK Storage (SW) Ltd [2012] UKUT 359 

  • Value Added Tax – were storage units immovable property? – held no – was right to store goods in units exempt supply of licence to occupy land or standard rated supply of storage services? – held if units were immovable property then exempt supply of licence to occupy land otherwise standard rated supply of storage services – was single supply a supply of licence to occupy land or of storage services? – held single supply of storage services – appeal allowed

Revenue & Customs v University of Cambridge [2015] UKUT 305

  • input tax – endowment fund for benefit of university – investment activity of university not an economic activity and outside scope of VAT – deductibility of input tax on fund management fees – whether fund management fees are overheads – yes – whether fund management services have direct and immediate link with economic activity of university as a whole – yes – appeal dismissed

Vehicle Control Services v HMRC [2012] UKUT 130b

  • VALUE ADDED TAX – supply of parking control services – whether parking charges collected and retained by operator were consideration for a supply – whether outside the scope of VAT as damages for trespass or damages for breach of a contract between the operator and the motorist – whether additional consideration payable by landowner for provision of parking control services – appeal dismissed

HMRC v Volkswagen Financial Services (UK) Ltd [2012] UKUT 394

  • VAT – partial exemption special method – hire purchase transactions – taxable supplies of motor vehicles and exempt supplies of credit – whether residual cost inputs have a direct and immediate link with and are cost components of taxable supplies of motor vehicles – whether a methodology which attributes 50% of residual input tax to taxable supplies is fair and reasonable.

Revenue and Customs v Wheels Private Hire Ltd [2017] UKUT 51

  •  rental of taxis – optional insurance – whether insurance transaction for VAT purposes – yes – whether single supply of leasing of insured vehicle or separate supplies of vehicle and insurance – separate supplies – appeal dismissed.

WIlton Park Ltd v Revenue and Customs [2015] UKUT 343

  • whether face-value vouchers issued by appellant companies constitute ‘any 5 security for money’ within Item 1 Group 5 Schedule 9 to VATA 1994 – yes – whether services supplied by clubs in return for commission charged on redemption of vouchers are services of dealing with security for money – no – redemption of vouchers held to be part of composite taxable supply of performance facilitation services by appellants – appeals dismissed

WM Morrison Supermarkets PLC v HMRC [2013] UKUT 247

  • VAT – supply of disposable barbecues – whether VAT chargeable at a reduced rate on the charcoal element of the supply – reduced rate of VAT on solid fuel pursuant to Schedule 7A Group 1 Item 1(a) VATA 1994 – Commission v France Case C-94/09 considered – interaction with Card Protection Plan v C & E Case C-349/96 considered – significance of charcoal being a concrete and specific aspect of the supply – appeal dismissed.

Wrag Barn Golf and Country Club v HMRC [2012] UKUT

  • VALUE ADDED TAX — option to tax land — whether option survived partnership changes — whether one partnership or two — First-tier Tribunal apparently decided only one — whether tribunal’s findings of fact supported by evidence — unclear — appeal remitted to First-tier Tribunal for re-hearing

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