Lenihan v Commissioners of Customs and Excise
| Jurisdiction | England & Wales |
| Judgment Date | 10 April 1992 |
| Date | 10 April 1992 |
| Court | Queen's Bench Division |
Queen's Bench Division (Crown Office List).
Macpherson J.
Kevin Prosser (instructed by Chethams, agents for Benson Burdekin, Sheffield) for the taxpayer.
Robert Jay (instructed by the Solicitor for Customs and Excise) for the Crown.
The following case was referred to in the judgment:
Pittalis & Anor v Grant & Anor ELR[1989] 1 QB 605
Value added tax - Appeal to High Court - Points of law not argued before tribunal - Whether new arguments could be raised in High Court.
This was an appeal by the taxpayer from a decision of the VAT tribunal dismissing his appeal against an assessment for VAT.
The taxpayer sold two motorised horse-boxes charging output tax. Before the tribunal the taxpayer proceeded on the basis that the sales were in the course of his business but the tribunal concluded that the horse-boxes were not used for business purposes. The taxpayer also claimed input tax in respect of two other horse-boxes which was not recoverable resulting in an underdeclaration of tax due.
On appeal to the High Court the taxpayer wished to argue two points which were not raised before the tribunal. The first was that the sales were not in the course of his business; output tax was not therefore payable and he claimed repayment of the output tax which had been accounted for. The second point was that he had transferred his business to a company which had assumed liability for all VAT matters so that it was from the company that the commissioners should have claimed the input tax.
Held, dismissing the taxpayer's appeal:
1. There was no justification for the court to exercise its discretion to allow either of the two points, which had not been mentioned to the tribunal, to be raised on an appeal (Pittalis & Anor v Grant & Anor ELR[1989] 1 QB 605 distinguished).
2. In any event neither point had any merit. The claim for repayment of output tax was covered by the Value Added Tax Act 1983,Value Added Tax Act 1983 schedule 7 subsec-or-para 6Sch. 7, para. 6(2) and (3), and it would be absurd that a person could recover output tax paid and pocket the money. Further, if the second point had any validity, it should have been raised before the tribunal.
The taxpayer appealed against a decision of the VAT tribunal given on 30 April 1990. The grounds of the appeal were:
1. That the tribunal erred in law in upholding an assessment dated 20 November 1988 in respect of output tax on the sale of two horse-boxes when the tribunal had found as a fact that the horse-boxes were not acquired...
To continue reading
Request your trial
-
Cooper & Chapman (Builders) Ltd v Commissioners of Customs and Excise
...v France VAT(Case 50/87) [1988] ECR 4797; (1990) 5 BVC 205 EC Commission v Germany (Case 29/84) [1985] ECR 1661 Lenihan v C & E Commrs VAT[1992] BVC 73 Pittalis & Anor v Grant & Anor ELR[1989] QB 605 Rompelman & Anor v Minister van Financiën VAT(Case 268/83) [1985] ECR 655(1985) 2 BVC 200,1......
-
Ferrero UK Ltd
... ... Customs submitted that both products were confectionery. Both were normally eaten ... ...
-
Commissioners of Customs and Excise v Ferrero UK Ltd
...(instructed by Taylor Joynson Garrett) for the taxpayer. The following cases were referred to in the judgment: Lenihan v C & E Commrs VAT[1992] BVC 73 Pittalis v Grant ELR[1989] 1 QB 605 Value added tax - Application to amend grounds of appeal - Zero-rating - Food - Test for deciding whethe......
- Commissioners of Customs and Excise v Ferrero UK Ltd