The Commissioners for HM Revenue and Customs v Sibcas Limited
| Jurisdiction | UK Non-devolved |
| Judge | Lord Doherty |
| Neutral Citation | [2017] UKUT 0298 (TCC) |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Subject Matter | Tax,24 July 2017 |
| Date | 24 July 2017 |
| Published date | 27 July 2017 |
© CROWN COPYRIGHT 2017
[2017] UKUT 0298 (TCC)
UT/2016/0234
VAT – whether the letting of prefabricated temporary classrooms was an exempt supply in terms of
Schedule 9, part II, group 1, item 1 of VATA - whether a letting of immovable property in terms of
Article 135(1)(l) of Council Directive 2006/112/EC - whether building fixed to or in the ground -
whether easily dismantled and easily moved - Appeal allowed.
Upper Tribunal
(Tax and Chancery Chamber)
ON APPEAL FROM THE
FIRST-TIER TRIBUNAL (TAX CHAMBER)
Between
THE COMMISSIONERS FOR HER MAJESTY’S
REVENUE AND CUSTOMS Appellants
and
SIBCAS LIMITED
Respondent
Before
THE HONOURABLE LORD DOHERTY
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
Heard at The Tribunal Centre, George House,
Edinburgh
On Thursday 1 June 2017
Representation:
For the Appellants: Elisabeth Roxburgh, Advocate, instructed by the General Counsel and
Solicitor to HM Revenue and Customs.
For the Respondent: Philip Simpson QC, instructed by Maria McConnell, French Duncan
LLP.
DETERMINATION AND REASONS
DECISION
The appeal is allowed.
2
REASONS
Introduction
1. The issue in this appeal is whether the respondent’s supply of goods and services to the Ian
Ramsay Church of England School, Stockton-on-Tees (“IRS”) was an exempt supply. The
appellants maintain that it was. The respondent says that the supply was not exempt, and that
it was chargeable to VAT at the standard rate.
2. On 13 February 2015 the appellants determined that the supply by the respondent was an
exempt supply. The respondent appealed against that decision. On 15 July 2016 the First-tier
Tribunal (“FTT”) allowed the respondent’s appeal ([2016] UKFTT 502 (TC)). On 7
November 2016 it granted the appellants leave to appeal to the Upper Tribunal (“UT”).
3. This appeal proceeds under section 11(1) of the Tribunals, Courts and Enforcement Act 2007.
Section 11(1) refers a right of appeal from the FTT “on any point of law arising from a
decision made by the First-tier Tribunal” with certain exceptions that do not apply in the
present case. In Advocate General for Scotland v Murray Group Holdings Ltd 2016 SC 201
the Second Division of the Inner House of the Court of Session (at paragraphs 42 to 48)
outlined the four different categories of cases which an appeal on a point of law covers. If the
UT finds that the FTT has made an error on a point of law it is empowered by section 12 of
the 2007 Act to set aside the FTT’s decision and to remit it to the FTT with directions for its
reconsideration, or to remake the decision.
Community Legislation
4. Article 4(3)(a) of Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the
laws of the Member States relating to turnover taxes common system of value added tax (“the
Sixth Directive”) made provision concerning VAT relating to the supply of buildings or parts
of buildings. It also provided:
“‘A building shall be taken to mean any structure fixed to or in the ground;”
The French and German language versions of the definition were:
“Est considérée comme bâtiment toute construction incorporée au sol;”
“Als Gebäude gilt jedes mit dem Boden fest verbundene Bauwerk;”
Article 13B(b) provided that Member States should exempt from VAT:
“the leasing or letting of immovable property…”
5. In 2006 the Sixth Directive was repealed and the content of the aforementioned provisions
was repeated, virtually unchanged, in Council Directive 2006/112/EC of 28 November 2006
on the common system of VAT (“the 2006 Directive”). The current provision dealing with
the supply of buildings or parts of buildings is Article 12(1)(a). Article 12(2) provides:
“For the purposes of paragraph 1(a), ‘building’ shall mean any structure fixed to or in the
ground.”
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