R v Commissioners of Customs and Excise and VAT Tribunal, ex parte Menzies
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 1990 |
| Date | 01 February 1990 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal (Civil Division).
Neill and Farquharson L JJ and Sir John Megaw.
The appellant appeared in person.
Mr Guy Sankey (instructed by the Solicitor for Customs and Excise) for the Crown.
The following cases were referred to in the judgment:
C & E Commrs v Fine Art Developments plc ELRVAT[1989] AC 914; (1989) 4 BVC 26
R v Chief Constable of Merseyside Police, ex parte Calveley ELR[1986] QB 424
R v London VAT Tribunal, ex parte Theodorou VAT(1989) 4 BVC 33
R v Secretary of State for the Home Department, ex parte Swati WLR[1986] 1 WLR 477
Value added tax - High Court proceedings - Taxpayerappeared in person on behalf of company as managing director - Whethercompany had to be professionally represented - Rules of the SupremeCourt, O.5, r.6.Judicial review - Appeal from VAT tribunal on point of law - Whether judicial review appropriate - section 13Tribunals and Inquiries Act 1971, sec. 13.Requirement that tax due should be paid before tribunal could entertain appeal - Value Added Tax Act 1983 section 40subsec-or-para (2)Value Added Tax Act 1983, sec. 40(2).
This was an appeal by Mr Menzies ("the appellant")against the decision of Macpherson J ((1988) 3 BVC 425) refusing an application for judicial review of a decision of the Commissioners of Customs and Excise that certain input tax was not deductible by a company of which the appellant was managing director, and against the refusal of the VAT tribunal to entertain the company's appeal unless all the tax shown in the tax returns to be payable was paid.
The appellant was the managing director of a company which appealed to the VAT tribunal against a decision of the commissioners disallowing a claim for repayment of input tax made in a return for an accounting period in 1986. The tribunal refused to hear the appeal unless sums amounting to £27,533 were paid to comply with the section 40 subsec-or-para (2)Value Added Tax Act 1983, sec. 40(2). The company paid part of that sum but claimed to deduct input tax of £15,327 which had not been agreed by the commissioners.
The tribunal refused to hear the appeal on the ground that the amount of tax shown on the company's returns had not been paid.
The appellant himself applied for judicial review of the commissioners' decision disallowing repayment of input tax and of the decision of the tribunal that the appeal could not be entertained.
The judge dismissed the application on three grounds. He held that the proceedings should have been brought by the company and that under the Rules of the Supreme Court, O. 5, r. 6, para. 2 a company may not appear except by a solicitor. The second ground was that this was not a case where judicial review was appropriate: a statutory appeal under the section 13Tribunals and Inquiries Act 1971, sec. 13 was available and should have been used. In any event the application failed on its merits because the company had failed to pay the amount shown on its return to be due.
Before the Court of Appeal the appellant contended that as managing director he had made an assignment of the company's rights to himself after the High Court hearing which entitled him to appear and that the court should excercise its discretion to grant judicial review even if there was another remedy because that was the only course open to him as the company had no funds for professional representation.
The appellant further contended that since the House of Lords decision in C & E Commrs v Fine Art Developments plc VAT(1989) 4 BVC 26, he was entitled to deduct the input tax claimed even though it was disputed by the commissioners.
Held, dismissing the taxpayer's appeal:
1. Even if the appellant was entitled to institute proceedings because he had some interest in the company, judicial review was not an appropriate procedure. Where a statutory remedy was available the court had a discretion to grant judicial review in exceptional circumstances but there were no such exceptional circumstances in this case.
Per Curiam: It was not necessary to decide whether the assignment was valid or whether it gave the appellant any standing to appear on behalf of the company but it was doubtful that the assignment would have any effect. Nor was it necessary to decide whether the decision in C & E Commrs v Fine Art Developments plc enabled input tax not agreed by the commissioners to be deducted from tax shown to be due for the purposes of section 40 subsec-or-para (2)sec. 40(2)but the appeal would not have succeeded on that ground. That case was concerned with recovery of tax due under RSC, O. 14. It did not affect the position in relation to section 40 subsec-or-para (2)sec. 40(2).
Neill LJ: This is an appeal by Mr Rowan Gavin Paton Menzies, whom I shall call the appellant, against the order of Macpherson J, dated 8 November 1988, dismissing the motion of the appellant seeking judicial review of the following decisions:
(a) a decision of the Westminster VAT Office of the Customs and Excise, communicated in a letter to the appellant dated 23 May 1986, which disallowed a claim to the repayment of VAT in the sum of £12,116 made in a return made by Templedown Ltd for period 01 of 1986; and
(b) decisions of the VAT tribunal presided over by Lord Grantchester, on 23 February, 6 April and 22 June 1987, whereby it was held inter alia that an appeal by Templedown against the decisions of the Customs and Excise dated 23 May 1986 could not be entertained.
The basis of the decisions of the VAT tribunal was that, by reason of section 40 subsec-or-para (2)sec. 40(2)of theValue Added Tax Act 1983, it was necessary for the taxpayer, before an appeal could be entertained, to pay the amounts shown in the tax returns as being payable by him or it at the relevant date. It was held that the amounts shown in the VAT returns of Templedown as payable had not in fact been paid.
The judge dismissed the motion on three grounds.
First, he held that Mr Menzies had no right to be heard:
(a) because the proceedings should have been in the name of Templedown, as it was only the...
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