K2: Appealable decisions indirect tax
VAT appealable matters
"(1) Subject to sections 83G and 84, an appeal shall lie to the tribunal with respect to any of the following matters—" (VATA 1994, s.83(1))
Registration and single taxable person direction
(a) the registration or cancellation of registration of any person under this Act;
(u) any direction or supplementary direction made under paragraph 2 of Schedule 1;
VAT chargeable on supply etc
(b) the VAT chargeable on the supply of any goods or services, on the acquisition of goods from another member State or, subject to section 84(9), on the importation of goods from a place outside the member States;
Applies to decisions in respect of both supplies made and supplies to be made:
“But there may perhaps be other cases in which the taxpayer will wish to have some point of principle resolved before finally formulating his repayment claim or before deciding whether to involve himself in expensive unjust enrichment litigation. And if, say, the dispute arises whilst the tax at issue is still being charged (as it would have been here had the reviewed decisions been sought whilst the differential rates remained in force), and then the tax regime changes before the appeal is heard, it would seem quite wrong to have to discontinue an existing paragraph (b) appeal [chargeability of supply] so as to replace it with a retrospective paragraph (l) appeal [right to repayment].” (CEC v. Cresta Holidays Ltd  EWCA Civ 215, §11).
(c) the amount of any input tax which may be credited to a person;
(e) the proportion of input tax allowable under section 26;
(f) a claim by a taxable person under section 27 [input tax on goods imported for private purposes];
Refund of fall back VAT
(d) any claim for a refund under any regulations made by virtue of section 13(5);
Fiscal warehousekeeper approvals
(da) a decision of the Commissioners under section 18A—
(i) as to whether or not a person is to be approved as a fiscal warehouse keeper or the conditions from time to time subject to which he is so approved;
(ii) for the withdrawal of any such approval; or
(iii) for the withdrawal of fiscal warehouse status from any premises;]1
(fza) a decision of the Commissioners—
(i) refusing or withdrawing authorisation for a person's liability to pay VAT (or entitlement to credit for VAT) to be determined as mentioned in subsection (1) of section 26B;
(ii) as to the appropriate percentage or percentages (within the meaning of that section) applicable in a person's case.]10
Payments on account
(fa) a decision contained in a notification under paragraph (4) of article 12A of the Value Added Tax (Payments on Account) Order 1993 that an election under paragraph (1) of that article shall cease to have effect;
DIY builder claim
(g) the amount of any refunds under section 35;
Bad debt refunds
(h) a claim for a refund under section 36 or section 22 of the 1983 Act;
Repayment to overseas business
(ha) any decision of the Commissioners to refuse to make a repayment under a scheme under section 39;
New means of transport refund
(j) the amount of any refunds under section 40;
(k) the refusal of an application such as is mentioned in section 43B(1) or (2);
(ka) the giving of a notice under section 43C(1) or (3);
(wa) any direction or assessment under Schedule 9A;
(l) the requirement of any security under section 48(7) or paragraph 4(1A) or (2) of Schedule 11;
(m) any refusal or cancellation of certification under section 54 or any refusal to cancel such certification;
(n) any liability to a penalty or surcharge by virtue of any of sections 59 to 69B;
(na) any liability to a penalty under section 69C, any assessment of a penalty under that section or the amount of such an assessment;
(nb) the giving of a decision notice under section 69D or the portion of a penalty assessed under section 69C which is specified in such a notice;
(o) a decision of the Commissioners under section 61 (in accordance with section 61(5));
Assessments and claims
(p) an assessment—
(i) under section 73(1) or (2) in respect of a period for which the appellant has made a return under this Act; or
(ii) under subsections (7), (7A) or (7B) of that section; or
(iii) under section 75;
or the amount of such an assessment;
(q) the amount of any penalty, interest or surcharge specified in an assessment under section 76;
(r) the making of an assessment on the basis set out in section 77(4);
(sa) an assessment under section 78A(1) or the amount of such an assessment;
(t) a claim for the crediting or repayment of an amount under section 80, an assessment under subsection (4A) of that section or the amount of such an assessment;
(ta) an assessment under section 80B(1) or (1B) or the amount of such an assessment;
Joint and several liability
(ra) any liability arising by virtue of section 77A;
(rb) an assessment under section 77C or the amount of such an assessment;
(s) any liability of the Commissioners to pay interest under section 78 or the amount of interest so payable;
(v) any direction under paragraph 1, 1A, 2 or 8A of Schedule 6 or under paragraph 2 of Schedule 4 to the 1983 Act;
(w) any direction under paragraph 1 of Schedule 7;
(x) any refusal to permit the value of supplies to be determined by a method described in a notice published under paragraph 2(6) of Schedule 11;
Option to tax land
(wb) any refusal of the Commissioners to grant any permission under, or otherwise to exercise in favour of a particular person any power conferred by, any provision of Part 1 of Schedule 10;
Does not include HMRC decision to deem option valid - see below.
"Where there is an appeal against such a refusal as is mentioned in section 83(1)( wb)
( a) the tribunal shall not allow the appeal unless it considers that HMRC could not reasonably have been satisfied that there were grounds for the refusal, and
( b) the refusal shall have effect pending the determination of the appeal." (VATA 1994, s.84(7ZA)
(y) any refusal of authorisation or termination of authorisation in connection with the scheme made under paragraph 2(7) of Schedule 11;
(z) any conditions imposed by the Commissioners in a particular case by virtue of paragraph 2B(2)(c) or 3(1) of Schedule 11
Record keeping and returns
(zza) a direction under paragraph 6A of Schedule 11;
(zc) a decision of the Commissioners about the application of any provision of regulations under paragraph 2 or 6 of Schedule 11, or of regulations under section 135 or 136 of the Finance Act 2002 relating to VAT, which—
(i) requires returns to be made or information to be submitted by electronic communications, or
(ii) requires records to be kept or preserved in electronic form,
(including in particular a decision as to whether such a requirement applies and a decision to impose a penalty).
(za) a direction under paragraph 8 of Schedule 11A;
(zb) any liability to a penalty under paragraph 10(1) of Schedule 11A, any assessment under paragraph 12(1) of that Schedule or the amount of such an assessment;
Strike out of appeal against assessment if no return submitted
See VATA 1994, s.83(1)(p), above.
" Although they are not binding on me (and were not referred to by either party), this conclusion has also been reached in two earlier FTT decisions, Yun He v HMRC  UKFTT 317 (TC) at paras – and – and Withington KFC Services v HMRC  UKFTT 319 (TC) at paras –. The conclusion in these cases was also that, where an assessment is issued because no return has been filed, there is no right of appeal unless or until a return is filed.
 I therefore must strike out the appeal brought by Mr Oag against the VAT assessment in relation to the period 2011-2018. The assessment relating to 2005-06 remains under appeal.
 I make one final observation. Both the original assessment letter and the review outcome letter expressly refer to Mr Oag’s right to bring an appeal to the Tribunal against the assessment. While, the contents of the letters from HMRC cannot introduce a right of appeal and it is not within the jurisdiction of this Tribunal to change HMRC’s procedure, I do observe that it is not helpful or an efficient use of resources for HMRC to send letters to taxpayers telling them that they can appeal only then to make an application to strike out the appeal that the taxpayer has, not surprisingly, then brought. I would hope that HMRC would now change their correspondence in relation to assessments raised under section 73(1) to make it clear that an appeal may only be brough if a return is submitted." (Oag v. HMRC  UKFTT 287 (TC), Judge McGregor)
" Section 83(1)(p)(i) sets out the scope of the Tribunal's jurisdiction. That scope is clear and unambiguous. In the absence of a return by Withington, we have no jurisdiction to entertain any appeal against the Withington Assessment. We do not consider that position to be altered by section 84(5) which gives the Tribunal the jurisdiction to give a direction specifying the correct amount of a best judgment assessment. As we read it, that jurisdiction (being ancillary to, or subordinate to, the limits on the primary jurisdiction set out in section 83) only arises where an appeal can be entertained: i.e., where a return has been made. Nor, when it comes to the Withington Assessment, do we consider that the 'prior decision' jurisdiction set out in Section 83(10) assists the Appellant here because the appeal against the Withington Registration Decision (as opposed to the Withington Assessment) is within section 83." (Withington KFC Services Ltd v. HMRC  UKFTT 319 (TCC), Judge McNall)
FTT has jurisdiction to decide whether there is an assessment
" ... But, in principle there is no bar to the logically prior question of whether something purporting to amount to an assessment was actually an assessment for the purposes of the legislation, then being litigated as part of the proceedings before the FTT as a ground of appeal in its own right. The litigation in Aria illustrates that such a question is capable of being addressed before the tribunal." (Coyle t/a Coyle Transport v. HMRC  UKUT 113 (TCC), Judge Raghavan and Judge Dean)
FTT has jurisdiction to decide whether there is a claim
“HMRC might be said to have made a decision not to accept or reject the demand made in the September 2006 letter. In other words not to treat it as a claim. That may be an appealable decision within section 83(1)(t) VAT Act 1994 however for the reasons given above there was no claim to be accepted or rejected and an appeal against such a decision would stand no reasonable prospect of success.” (Websons (8) Ltd v. HMRC  UKFTT 229 (TC), §53).
FTT has jurisdiction over reclaim of amount shown on invoice as VAT
As a result of the claims being made under s.80, the FTT has jurisdiction under s.83(1)(t).
“HMRC did, however, concede that we had jurisdiction under section 83(1)(t) to hear an appeal for the recovery of an amount claimed under section 80, and the Appellant’s contention was that their claim was indeed made under section 80 such that we did have jurisdiction…We accept that Services’ claim is indeed properly made under section 80.” (St Martin’s Medical Services Ltd v. HMRC  UKFTT 485 (TC), §§117…118)
FTT does have jurisdiction over r.38 adjustments
"We consider that the FTT has jurisdiction under section 83(1)(b) ATA to determine whether an adjustment may be made under regulation 38 and, if so, what adjustment should be made. We agree with the comments of the VAT Tribunal in GMAC. If HMRC refuses to accept an adjustment under regulation 38 then it follows that there is a dispute about the value of the supply and that is directly related to the VAT chargeable on the supply. We do not consider that it can be right that, in such circumstances, the taxable person must make a separate claim under section 80 in order to pursue an appeal although such a claim could be made." (HMRC v. Iveco Limited  UKUT 263 (TCC), §§21…22, Warren J and Judge Sinfield).
VAT matters not appealable under VATA
Certain import VAT decisions
"(9) No appeal shall lie under this section with respect to the subject-matter of any decision which by virtue of section 16 is a decision to which section 14 or 15A of the Finance Act 1994 (decisions subject to review) applies unless the decision—
(a) relates exclusively to one or both of the following matters, namely whether or not section 30(3) applies in relation to the importation of the goods in question and (if it does not) the rate of tax charged on those goods; and
(b) is not one in respect of which notice has been given to HMRC under section 14 of that Act requiring them to review it; and
(c) a review is not being undertaken following a request under section 14A of that Act; and
(d) a review is not being undertaken under section 15 of that Act as a consequence of section 15B(3), 15C(3) or 15E(3) of that Act." (VATA 1994, s.84(9))
- Decision to deem option to tax valid: no appeal
" I disagree. The phrase “or otherwise” only expands the right so as to encompass not only refusals of “permission”, but also other decisions not to exercise a power in a person’s favour. It does not expand the meaning so as to encompass decisions made by HMRC on their own initiative, under the discretionary power given by the statute, which are neither a refusal to grant a permission nor a refusal to exercise a power in a person’s favour.
57. The appeal right therefore exists where HMRC have refused to do something which a person has asked HMRC to do. Here, HMRC have not refused to do anything, they have instead deemed the purported OTT to have effect.
58. I do not accept that an appeal right should be implied simply because the alternative analysis would mean that a decision could only be challenged by judicial review. The Upper Tribunal (Warren J and Judge Bishopp) considered a similar submission in relation to fixed penalties in Bosher v HMRC  UKUT 579 (TCC),..." (Rolldeen Estates Limited v. HMRC  UKFTT 359 (TC), Judge Redston)
See J3: Challenges: other indirect tax decisions
Binding tariff information decisions
“Sections 13A to 16 of the Finance Act 1994, as they apply to the decisions mentioned in section 13A(2) of the Act, shall apply to the following decisions of the Commissioners, so far as they are made for the purposes of the EU provisions relating to binding tariff information or the EU provisions relating to binding origin information—
(a) any decision as to the tariff classification or determination of the origin of any goods;
(b) any decision as to whether or not binding tariff information or binding origin information is to be supplied;
(c) any decision as to whether or not any binding tariff information or binding origin information is to be annulled, withdrawn or revoked.” (Customs Reviews and Appeals (Tariff and Origin) Regulations 1997/534, r3(1)).
Note that decisions on classification in BTIs fall within (a) and are subject to full appellate jurisdiction:
“In the absence of any authority to the contrary, the Tribunal would consider it evident that a BTI is a decision of the kind referred to in regulation 3(1)(a) CRATOR, rather than a decision of the kind referred to in regulation 3(1)(c). The Tribunal considers that the appeal in this case is an appeal against the BTIs rather than an appeal against the review decision. In any event, a review decision is a review of the original decision contained in the BTI, rather than a free standing decision as to whether a BTI should be annulled, withdrawn or revoked. Section 16(4) of the Finance Act 1994 refers to “any decision as to an ancillary matter, or any decision on the review of such a decision”, which seems to confirm that for present purposes a review decision takes on the character of the decision that it reviews…This conclusion is confirmed by the decision in Honeywell at  and , and it was common ground between the parties in Hasbro at -. The Tribunal therefore finds that it has a full appellate jurisdiction.” (Law Print and Packaging Management v. HMRC  UKFTT 284 (TC), §§66…67).
FTT does have jurisdiction over waiver of customs debt
“We do not agree, because:
(1) it is clear from Mecanarte that HMRC has “a non-discretionary power” under Article 220(2)(b) to waive a customs debt as part and parcel of their decision to make an assessment;
(2) under FA94 s 16 Citipost has the right to appeal against any relevant decision made by HMRC, including a decision (our emphasis) as to “whether or not, and at what time, anything is charged in any case with any such duty…”; and
(3) the Tribunal has jurisdiction to decide any matter within that right of appeal, see Noor at .” (Citipost Mail Ltd v. HMRC  UKFTT 283 (TC), §293).