Commissioners of Customs and Excise v Darfish Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 20 March 2000 |
| Date | 20 March 2000 |
| Court | Queen's Bench Division |
Queen's Bench Division (Crown Office List).
Moses J.
R Anderson (instructed by the Solicitor for Customs and Excise) for the Crown.
Richard Barlow (instructed by Flint Bishop & Barnett, Derby) for the taxpayer.
The following case was referred to in the judgment:
Cheshire County Council v Armstrongs Transport (Wigan) Ltd[1995] Env LR 62
Landfill tax - Deposit - Waste - Taxpayer owned licensed landfill site - Topsoil and subsoil removed from development site - Materials deposited on taxpayer's landfill site - Whether taxpayer liable to landfill tax in respect of deposits - Finance Act 1996, Finance Act 1996 section 40 section 64ss. 40, 64.
This was an appeal by Customs against a decision of the VAT tribunal that the taxpayer was not liable to landfill tax in respect of the deposit of topsoil and subsoil on its licensed landfill site.
The taxpayer held a licence under Pt. II of the Environmental Protection Act 1990. It was permitted to allow inactive waste to be deposited on part of that land. The taxpayer applied for outline planning permission to develop its land for industrial purposes. The land required earth for site engineering purposes. The taxpayer needed additional topsoil and subsoil from elsewhere to complete the development. A subsidiary company ("DNS") contracted to remove the material from the two development sites and deposit it on the taxpayer's landfill site. An issue arose as to whether the taxpayer was liable to landfill tax in respect of the deposits of material on its land. The tribunal concluded that the disposal was on behalf of the taxpayer within Finance Act 1996 section 64s. 64 of the Finance Act 1996 but that the taxpayer did not intend to discard the materials as waste. Customs appealed to the High Court arguing that the disposal was not made on behalf of the taxpayer but on behalf of the owners of the development sites.
Held, allowing the appeal:
The concept of making a disposal in Finance Act 1996 section 64 subsec-or-para (1)s. 64(1) of the 1996 Act connoted the parting with or the alienation of something. It included, but was not confined to, any of the processes of removal, transport and deposit. It was deposit that triggered the tax and identified the time when the landfill site operator had to be identified as such, but disposal was not limited to the process of deposit.
The focus of the relevant provisions was on the person getting rid of something, not upon the person retaining or acquiring something. DNS was not making a disposal on behalf of the taxpayer. It was assisting in the acquisition and retention of the material on behalf of the taxpayer but it was making a disposal on behalf of the owners of the two development sites and it was their intention that should have been determined by the tribunal. There was no finding as to the owners' intentions and the tribunal erred in its construction of "disposal". The only course was to remit the case to the same tribunal to make further findings if necessary on further evidence.
Moses J:
1. The issue in this appeal is whether Darfish Ltd is liable to landfill tax in respect of a deposit of topsoil and subsoil on to its licensed landfill site. The deposit took place some time after 1 October 1996. The issue turns on whether it was open to the tribunal to find that the deposit made by DNS Magfern Ltd ("DNS") was a disposal on behalf of Darfish or on behalf of two companies, Wilson Bowden and Hallamshire, from whose development sites the material had been removed.
2. Landfill tax was introduced by the Finance Act 1996. It is under the care and management of the Commissioners of Customs and Excise. Section 40 is as follows:
(1) Tax shall be charged on a taxable disposal.
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(2) A disposal is a taxable disposal if-
(a) it is a disposal of material as waste,
(b) it is made by way of landfill,
(c) it is made by a landfill site, and
(d) it is made on or after 1st October 1996.
(3) For this purpose a disposal is made on the landfill site if the land on or under which it is made constitutes or falls within land which is a landfill at the time of disposal.
3. Section 41 is as follows:
(1) The person liable to pay tax charged on a taxable disposal is the landfill site operator.
(2) The reference here to the landfill site operator is to the person who is at the time of the disposal of the disposal the operator of the...
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Waste Recycling Group Ltd v HMRC
...to refer to two authorities with which each of them dealt at some length. They are the decisions of Moses J in Commissioners of Customs & Excise v Darfish Ltd [2000] All ER (D) 361 and of the Court of Appeal in Commissioners of Customs & Excise v Parkwood Landfill Ltd [2002] STC 1536. 9 In ......
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Waste Recycling Group Ltd v HMRC
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Commissioners of Customs and Excise v Parkwood Landfill Ltd
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