TC09674 - [2025] UKFTT 01273 (TC)

As we have mentioned above, the appeals made by OBT in this case comprise: (i) an appeal under section 83(1)(c) against HMRC’s decision that it was not entitled to input tax credit in respect of certain purchases from its suppliers; and (ii) appeals under section 83(1)(p) against the VAT assessments issued by HMRC on 5 May 2023. HMRC withdrew the decision and the related assessments by email on the morning of 3 October 2025, the third day of the hearing.

Mr Matthews submitted on behalf of HMRC that the effect of the withdrawal of the decision and the related assessments was that there was no appealable decision before the Tribunal. He referred to the decision of the Court of Appeal in R (on the application of Chichvarkin) v Secretary of State for the Home Department [2011] EWCA Civ 91 (“Chichvarkin”) as authority for the proposition that HMRC had power to withdraw its decision as a matter of general public law unless such a power was excluded (Chichvarkin [63]-[64]). The power was not excluded and so HMRC was entitled to withdraw the decision and the assessments. Having done so, there was no appealable decision. The Tribunal had no jurisdiction and must strike out the proceedings under rule 8(2)(a) FTT Rules. Mr Matthews referred the Tribunal to the decision of the FTT in Align in support of that conclusion.

Mr Firth KC, for OBT, agreed that there was no appealable decision under section 83(1)(p) VATA as that section expressly referred to an appeal against an “assessment”. However, he submitted that there remained an appealable matter under section 83(1)(c) VATA. Section 83(1)(c) did not refer to a decision or an assessment. It simply referred to “the amount” of input tax credited to a person. The point was emphasised by section 83(2) VATA, which provided for matters within section 83(1), which did not involve a decision, to be treated as a decision for the purposes of the relevant part of VATA. Furthermore, section 85(1) VATA provided for matters, which were before the Tribunal to be settled by agreement. It was implicit that if there was no such agreement, the matter remained before the Tribunal and for the Tribunal to determine. He sought to distinguish the FTT decision in Align. That decision related to an appeal under section 83(1)(b) VATA not section 83(1)(c). Furthermore, the Tribunal was not bound by that decision.