Kendal Golf Club
| Jurisdiction | UK Non-devolved |
| Judgment Date | 30 June 2017 |
| Neutral Citation | [2017] UKFTT 536 (TC) |
| Date | 30 June 2017 |
| Court | First-tier Tribunal (Tax Chamber) |
Judge Anne Scott, Member: Noel Barrett
Mr Guy Howell and Mr Ian Clancy appeared for the appellant
Mr Andrew Cameron, Officer of HMRC, appeared for the respondents
Value added tax – Application for leave to appeal out of time – Whether reasonable excuse – No – Application for extension of time refused – Application for strike-out granted.
[1] The hearing was in respect of an application included in the Notice of Appeal dated 6 February 2017 for an extension of time to appeal against the respondents (“HMRC”) decision not to allow a claim for overpaid VAT.
[2] There had been two decisions, namely, a decision dated 16 December 2016 for the period 03/09 to 03/10 and a decision dated 26 August 2009 for the periods 1990/2008. The appellant conceded that there was no appeal in relation to the period 03/09 to 03/10.
[3] In accordance with section 83G Value Added Tax Act 1994 (“VATA”) the appellant should have notified the appeal within 30 days of the decision, namely, by 24 September 2009. Accordingly, the delay in lodging this appeal is 2,703 days.
[4] On 18 February 2009 the appellant submitted claims for overpaid output tax on non-members green fees for the periods 1 April 1973 to 31 December 1989, 31 December 1990 to 31 December 1996 and 31 December 2005 to 31 December 2008.
[5] On 26 March 2009, the appellant submitted another claim for overpaid output tax for the VAT periods 1997 to 2004.
[6] On 14 May 2009, HMRC issued a decision to the appellant rejecting the claims for the years 1973–1989, 1990–1996, 1997–2005 and 2006–2008. That decision intimated the 30 day time limit for both the statutory right of review of the decision and the right to appeal to an independent tribunal.
[7] On 21 July 2009 the appellant requested a review of HMRC's decision.
[8] On 26 August 2009, HMRC upheld the decision. The final paragraph of the decision read:–
If you disagree with the decision you have the right of appeal to the Tribunal Service Tax whose address is Tribunals Service Tax … If you wish to appeal to the Tribunal an appeal must be lodged within 30 days of the date of this letter. You can find out how to do this on the Tribunals Service website …
[9] No appeal was lodged with the Tribunal Service.
[10] On 6 May 2014, the appellant wrote to HMRC referring to the previous claims for repayment of VAT referring to the decision dated 14 May 2009 and enclosing a further claim for the period 1 January 2009 to 31 December 2013.
[11] On 17 September 2014, the appellant wrote to HMRC enclosing a copy of the decision dated 14 May 2009, the review request and the reconsideration decision and asking that the claims “remain open in light of the recent Court decision”. It requested that the appeal application be stayed behind the lead case of R & C Commrs v Bridport and West Dorset Golf Club Ltd ECASVAT(Case C-495/12) [2014] BVC 1 (“Bridport”). HMRC did not respond and a reminder was sent on 11 November 2014 to which there was no response.
[12] On 4 November 2015, the appellant wrote to HMRC referring to Revenue & Customs Brief 19, providing further information but not linking that information to any particular claim.
[13] On 7 July 2016, the appellant wrote to HMRC referring to Revenue & Customs Brief 10 and the updated VAT Information Sheet 01/15 enclosing a time line and revised claim for refund of overpaid VAT for periods 1 January 1990 to 4 December 1996 and 1 January 2006 to 31 December 2008. That letter referred to the previous claim made in 2009.
[14] On 16 December 2016, HMRC issued a decision notice settling the claim for the period 06/10 to 12/13. The claims for the period 03/09 to 03/10 were rejected on the basis that they were made outwith the time limit for submitting a claim. It was pointed out that the claims for 1990 to 2008 had been rejected in 2009 and had not been appealed.
[15] On 17 February 2017, the Notice of Appeal, relating only to the decision of 26 August 2009, was received by the Tribunal.
[16] It was argued that HMRC's decision letter dated 14 May 2009 was misleading because it indicated that the appellant “could request a departmental review OR the right the (sic) appeal to an independent VAT tribunal”.
[17] Further the decision on review dated 26 August 2009 stated that if the appellant disagreed with the decision there was the right to appeal to the Tribunal Service Tax. The appellant argues that this advice should have stated that the claim would not remain “live” unless it was appealed to the Tribunal. It was their understanding at that time and since, that by requesting a review they had followed the procedure of appealing the decision and it would therefore remain open awaiting the outcome of any future court decision.
[18] In summary the appellant argues that the advice given about the appeal procedure was not clear.
[19] Rule 20 of The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (“the Rules”) specifies that an appellant must bring an appeal within the time limits provided for under the relevant legislation which, in this case, is section 83G VATA. Section 83G VATA provides that an appeal must be made within 30 days of the decision, or, in cases where a review has been undertaken, within 30 days of the notice of the conclusion of the review.
[20] The appellant's appeal was made to the Tribunal on 6 February 2017 being more than seven years later.
[21] HMRC argue that the information contained in both the decision and the review letters was clear and that no good explanation has been offered for the delay in appealing.
[22] HMRC take the very straightforward view that the extent of the delay in this appeal is so significant that, if the appeal was admitted, it will be contrary to the purpose of the time limit in section 83G VATA and therefore contrary to the aims of the legislation. The onus of proof lies with the appellant and if that is not discharged then the appeal falls to be struck out under the provisions of rule 8(2)(a) of the Rules as the Tribunal would not have jurisdiction in the proceedings.
[23] HMRC relied on Data Select Ltd v R & C Commrs VAT[2012] BVC 1,743 (“Data Select”), Romasave (Property Services) Ltd v R & C Commrs VAT[2015] BVC 518 (“Romasave”), and BPP Holdings Ltd v R & C Commrs VAT[2016] BVC 9.
[24] Under rule 20(4) of the Tribunal Rules, the Tribunal has discretion as to whether to admit a late appeal, and the relevant considerations to be addressed when considering whether to admit a late appeal have been set out by the Upper Tribunal in the following terms in Data Select at para. 34 which reads:–
Applications for extensions of time limits of various kinds are common place and the approach to be adopted is well established. As a general rule, when a court or tribunal is asked to extend a relevant time limit, the court or tribunal asks itself the following questions:
1) What is the purpose of the time limit?
2) How long was the delay?
3) Is there a good explanation for the delay?
4) What will be the consequences for the parties of an extension of time? and
5) What will be the consequences for the parties of a refusal to extend time?
The court or tribunal then makes its decision in the light of the answers to those questions.
[25] Justice Morgan also emphasised at para. 37 of Data Select the desirability of ...
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