The Borough Council of King's Lynn and West Norfolk v HM Revenue and Customs [2022] UKUT 00326 (TCC
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Miles,Judge Ashley Greenbank |
| Neutral Citation | [2022] UKUT 00326 (TCC |
| Subject Matter | 6 December 2022 |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Published date | 09 December 2022 |
Neutral Citation: [2022] UKUT 00326 (TCC Case Number: UT/2021/000156
UPPER TRIBUNAL
(Tax and Chancery Chamber) Royal Courts of Justice, Rolls Building,
Fetter Lane, London EC4A 1NL
VALUE ADDED TAX – off-street car parking provided by local authority – effect of parking
tariffs set by order of the local authority – whether overpayments are consideration for a
taxable supply – yes – appeal dismissed
Heard on: 11 October 2022
Judgment date: 06 December 2022
Before
MR JUSTICE MILES
JUDGE ASHLEY GREENBANK
Between
THE BOROUGH COUNCIL OF KING’S LYNN AND WEST NORFOLK
Appellant
and
THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMS
Respondents
Representation:
For the Appellant: Natasha Barnes, Counsel, instructed by PSTAX Limited
For the Respondents: Brendan McGurk, Counsel, instructed by the General Counsel and
Solicitor to His Majesty’s Revenue and Customs
1
DECISION
INTRODUCTION
1. This is an appeal by the appellant, the Borough Council of King’s Lynn and West Norfolk
(the “Council”), against a decision of the First-tier Tribunal (the “FTT”) dated 18 January 2021
and reported at [2021] UKFTT 10 (TC) (the “FTT Decision”) dismissing a claim by the Council
for repayment of VAT overpaid. The respondents are the Commissioners for His Majesty’s
Revenue and Customs (“HMRC”).
2. The appeal concerns the VAT treatment of off-street parking provided by local
authorities where charges for parking are collected by a machine which does not offer change.
In particular, it concerns the VAT treatment of “overpayments” made by customers who tender
an amount which exceeds the advertised tariff.
3. The VAT treatment of off-street car parking has come before the courts and tribunals in
several previous cases in the context of supplies made by both local authorities and private
sector providers. In a previous appeal by the Council, which is reported as Borough Council
of King’s Lynn and West Norfolk v HMRC [2012] UKFTT 671 (TC) (“King’s Lynn No.1”), the
FTT decided that an overpayment was not part of the consideration for a supply made by a
local authority, such as the Council. However, in National Car Parks Limited v HMRC [2019]
EWCA Civ 854 (“NCP CA”), the Court of Appeal held that, in similar circumstances, an
overpayment was part of the consideration for a supply of off-street car parking by a private
sector provider. The Upper Tribunal, in that case, had reached a similar conclusion and, in
doing so, had expressed the view that King’s Lynn No.1 was wrongly decided (see National
Car Parks Limited v HMRC [2017] UKUT 247 (TCC) (“NCP UT”) at [44]). However, having
not heard argument on the specific considerations that might apply to the provision of off-street
car parking by local authorities, the Court of Appeal declined to take a view on the correctness
of the FTT’s decision in King’s Lynn No.1 (NCP CA [23]).
4. The question before the tribunal in this case is essentially whether the conclusion of the
Court of Appeal in NCP CA applies equally to the provision of car parking services by local
authorities (and accordingly whether King’s Lynn No.1 was rightly decided). The FTT (Judge
Brooks) decided that an overpayment was part of the consideration for a supply of off-street
parking by the Council. It is therefore implicit in Judge Brooks’s decision that, in his view, the
FTT’s decision in King’s Lynn No.1 was wrong. The Council appeals against the FTT Decision
with the permission of the FTT.
FACTS
5. The facts are not disputed. They are set out in the FTT Decision (at [13]), and were taken
from the decision of the FTT in King’s Lynn No.1 where the FTT stated (at [6]-[8]):
6. The [Council] operates car parks with ticket dispensing machines. The
machines display sliding scale hourly parking charges car park information,
opening times and payment instructions. The machines indicate that no change
is given and overpayments are accepted.
7. Where a member of the public puts money into the machine they obtain a
parking sticker which can be fixed to the windscreen of their vehicle. It shows
the day, month and year, the amount paid and the period of validity of the
ticket. ….
8. The machine accepts a variety of coins including 5p, 10p, 20p, 50p, £1 and
£2. The parking facilities are available on a twenty-four hour, seven day a
week basis and tickets are purchased for daily parking between the periods
8.00am and 6.00pm and overnight parking at a fixed rate. The first hour is
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