Hampton George Hewitt v The Commissioners for HM Revenue and Customs [2021] UKUT 0231 (TCC)

JurisdictionUK Non-devolved
JudgeJudge Thomas Scott,Judge Ashley Greenbank
Neutral Citation[2021] UKUT 0231 (TCC)
Subject Matter17 September 2021
CourtUpper Tribunal (Tax and Chancery Chamber)
Published date20 September 2021
[2021] UKUT 0231 (TCC)
UPPER TRIBUNAL
TAX AND CHANCERY CHAMBER
Appeal number: UT/2019/000001
BETWEEN
HAMPTON GEORGE HEWITT
Appellant
-and-
Respondents
TRIBUNAL:
JUDGE THOMAS SCOTT
JUDGE ASHLEY GREENBANK
Sitting in public by way of remote video hearing treated as taking place in Belfast on
9 June 2021
Robert Maas, of Carter Backer Winter LLP, for the Appellant
Barbara Belgrano, counsel, instructed by the General Counsel and Solicitor to HM
Revenue and Customs, for the Respondents
VALUE ADDED TAX flat-rate scheme for farmers application for permission to make
late appeal against cancellation of certificate whether refusal of permission to make a late
appeal breached principle of effectiveness under EU law no appeal dismissed
1
DECISION
INTRODUCTION
1. This appeal concerns an application by the appellant, Mr Hampton George Hewitt, for
permission to make a late appeal against a decision of the respondents, the Commissioners for
Her Majesty’s Revenue and Customs (“HMRC”), to cancel Mr Hewitt’s certificate as a flat-
rate farmer for VAT purposes.
2. The application was refused by the First-tier Tribunal (Judge Alastair Rankin) (the
“FTT”). The FTT’s decision was first released in summary form on 7 February 2019 and then
with full written findings and reasons on 28 February 2019. The full decision is reported as
[2019] UKFTT 152 (TC). In this decision, our references to paragraphs in the FTT’s decision
are to the paragraphs in the full decision.
3. As will be seen below, the FTT refused the application, applying the principles set out
by the Upper Tribunal in Martland v HMRC [2018] UKUT 178 (TCC) (“Martland”) referring
to the approach of the Court of Appeal in Denton and others v TH White Limited and others
[2014] EWCA Civ 906 (“Denton”). There is no challenge on this appeal to the adoption of
those principles by the FTT. The only issue raised on this appeal is whether the EU law
principle of effectiveness requires that Mr Hewitt be granted permission to appeal against the
cancellation of his certificate notwithstanding that his appeal is over five years out of time.
LEGISLATIVE BACKGROUND
4. We will first set out some of the legislative background to this appeal.
5. The agricultural flat-rate scheme (“AFRS”) is a simplification measure. The scheme is
an alternative to VAT registration for farmers and other people involved in agricultural
production activities. A person who is operating under the AFRS (a “flat-rate farmer”) is not
registered for VAT, does not submit VAT returns and is not able to reclaim input tax on their
business purchases, but instead is allowed to charge and retain a flat rate addition to the price
of qualifying goods and services sold to VAT registered customers. The flat rate addition is
currently set at 4%.
6. The AFRS is an EU-wide scheme. It is provided for in Articles 295 to 305 of Council
Directive 2006/112/EC (the Principal VAT Directive”). The AFRS is implemented in UK
domestic law by section 54 of the Value Added Tax Act 1994 (“VATA”). Regulations have
been made under section 54 VATA and are contained in regulations 202 to 211 of the Value
Added Tax Regulations 1995 (SI 1995/2518) (the “VAT Regulations”).
7. Regulation 203 of the VAT Regulations provides for HMRC to certify that a person is
entitled to operate the AFRS where certain conditions are met. Those conditions are set out in
regulation 204. Regulation 206 then contains provisions which permit HMRC to cancel a
person’s certificate in certain circumstances. These include, in regulation 206(1)(i), where they
“consider it necessary for the protection of the revenue”.
8. A person whose certificate as a flat-rate farmer has been cancelled by HMRC has a right
to appeal to the FTT against the cancellation. That right is contained in section 83 VATA. It
provides, so far as relevant:
(1) Subject to sections 83G and 84, an appeal shall lie to the tribunal with
respect to any of the following matters
(m) any refusal or cancellation of certification under section 54 or any
refusal to cancel such certification;

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