The Commissioners for Her Majesty's Revenue and Customs v Richard Burton
| Jurisdiction | UK Non-devolved |
| Judgment Date | 21 January 2016 |
| Neutral Citation | [2016] UKUT 0020 (TCC) |
| Appellant | |
| Respondent | The |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Appeal Number | FTC/54/2013 |
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[2016] UKUT 0020 (TCC)
Case number: FTC/54/2013
VALUE ADDED TAX –- DIY Builders Scheme – construction of dwelling - whether
designed as a dwelling for purposes of subsection 35(1A)(a) and Note (2)(c) to Group
5 of Schedule 8 to VAT Act 1994 - whether descriptions and other details of
development contained in planning application and/or in planning consent prohibited
“separate use” of dwelling for purposes of Note (2)(c) leaving aside terms of
occupancy condition in planning consent - no - whether that condition amounted to
such a prohibition - yes - appeal allowed
UPPER TRIBUNAL
(TAX AND CHANCERY CHAMBER)
THE COMMISSIONERS FOR HER MAJESTY’S REVENUE & CUSTOMS
Appellants
- and -
RICHARD BURTON
Respondent
TRIBUNAL:
The Honourable Mr Justice Barling
Sitting in public in London on 23rd and 24th November 2015
Christiaan Zwart instructed by the General Counsel and Solicitor to HM Revenue
and Customs for the Appellants
The Respondent did not appear and was not represented at the hearing, but sent to
the Tribunal written submissions prepared by Andrew McDonald MAAT FCCA
© CROWN COPYRIGHT 2016
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DECISION
Introduction
1. By a decision released on 6 February 2013 the First-Tier Tribunal (“FTT”)
allowed an appeal by Mr Richard Burton (“Mr Burton”) against a formal internal
review determination by HMRC dated 17 February 2012, in which HMRC had upheld
their decision of 13 October 2011 refusing a claim for refund of VAT under section
35 of the Value Added Tax Act 1994 (“the 1994 Act”) in the sum of £8,566.72,
incurred by Mr Burton in connection with the construction of a building at Hall Lake
Fishery, The Fairways, Mansfield Woodhouse, Nottingham (“the Building”).
2. Section 35 of the 1994 Act provides in certain circumstances for a refund of VAT
incurred “on the construction of a building designed as a dwelling”. By subsection
35(4), the notes to Group 5 of Schedule 8 to the 1994 Act “shall apply for construing
this section”.
3. Note (2)(c) to Group 5 (“Note 2(c)”) provides:
“A building is designed as a dwelling……where in relation to each dwelling the following
conditions are satisfied –
…………
(c) th e separate use or di sposal of the dwelling is not prohibited by the term of any covenant,
statutory planning consent or similar provision;…..”
4. A statutory planning consent was granted under section 78 of the Town and
Country Planning Act 1990 (as amended) (“the 1990 Act”) in respect of land at Hall
Lake Fishery. The planning consent contained a condition (“Condition 4”) that:
“the occupation of the dwelling shall be limited to a person solely or mainly employed or last
employed in Park Hall Lake Fishery or a widow or widower of such a person, or any resident
dependants.”
5. In allowing Mr Burton’s appeal against HMRC’s refusal of a VAT refund under
section 35, the FTT held (amongst other findings) that the Building was “designed as
a dwelling” within the meaning of section 35 and Note 2(c), as its “separate use or
disposal” was not “prohibited” by the planning consent.
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