TC09568 - [2025] UKFTT 00917 (TC)

So far as relevant to us, section 24 of the Value Added Tax Act 1994 (“VATA”) defines input tax to include VAT paid or payable on the importation by a taxable person of any goods from a place outside the member States, and section 24(6) provides as follows:

“(6)

Regulations may provide—

(a)

for VAT on the supply of goods or services to a taxable person, VAT on the acquisition of goods by a taxable person from other member States and VAT paid or payable by a taxable person on the importation of goods from places outside the member States to be treated as his input tax only if and to the extent that the charge to VAT is evidenced and quantified by reference to such documents or other information as may be specified in the regulations or the Commissioners may direct either generally or in particular cases or classes of cases;”

Regulation 29 of the Regulations provides as follows:

“(2)

At the time of claiming deduction of input tax in accordance with paragraph (1) above, a person shall, if the claim is in respect of—

…

(c)

an importation of goods, hold a document authenticated or issued by the proper officer, showing the claimant as importer, consignee or owner and showing the amount of VAT charged on the goods;

…

provided that where the Commissioners so direct, either generally or in relation to particular cases or classes of cases, a claimant shall hold or provide such other ... evidence of the charge to VAT as the Commissioners may direct.”

So far as the underlying EU law is concerned, Article 168 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (“the PVD”) provides as follows:

“In so far as the goods and services are used for the purposes of the taxed transactions of a taxable person, the taxable person shall be entitled, in the Member State in which he carries out these transactions, to deduct the following from the VAT which he is liable to pay:

…

(e)

the VAT due or paid in respect of the importation of goods into that Member State.”

So far as evidence of input tax is concerned, Article 178 of the PVD provides:

“In order to exercise the right of deduction, a taxable person must meet the following conditions:

…

(e)

for the purposes of deductions pursuant to Article 168(e), in respect of the importation of goods, he must hold an import document specifying him as consignee or importer, and stating the amount of VAT due or enabling that amount to be calculated;”

The Union Customs Code (“UCC”) was in force in the UK at the time of the imports we are concerned with; it ceased to be in force in the UK after 31 December 2020. Article 173 of the UCC dealt with amending customs declarations, and it provided:

“1.

The declarant shall, upon application, be permitted to amend one or more of the particulars of the customs declaration after that declaration has been accepted by customs. The amendment shall not render the customs declaration applicable to goods other than those which it originally covered.

2.

No such amendment shall be permitted where it is applied for after any of the following events:

(a)

the customs authorities have informed the declarant that they intend to examine the goods;

(b)

the customs authorities have established that the particulars of the customs declaration are incorrect;

(c)

the customs authorities have released the goods.

3.

Upon application by the declarant, within three years of the date of acceptance of the customs declaration, the amendment of the customs declaration may be permitted after release of the goods in order for the declarant to comply with his or her obligations relating to the placing of the goods under the customs procedure concerned.”

The Taxation Cross-border Trade Act 2018 (“TCBTA”) sets out the post-Brexit customs duty regime and came into force on 31 December 2020. Paragraph 15 of Schedule 1 TCBTA provides:

“(1)

A person who has made a Customs declaration is entitled to amend or withdraw it at any time before a relevant event occurs.

(2)

For this purpose “a relevant event occurs” on the first occurrence of any of the following—

(a)

an HMRC officer indicating to the person that the officer intends to take steps to verify the declaration,

(b)

an HMRC officer taking steps to verify the declaration, and

(c)

HMRC accepting the declaration.”

Paragraph 16 of Schedule 1 provides:

“Once a relevant event occurs, the person making the declaration may amend or withdraw it only if—

(a)

a notification to amend or withdraw the declaration is given to an HMRC officer before the end of a period specified in a public notice given by HMRC Commissioners, and

(b)

an HMRC officer consents to the making of the amendment or the withdrawal.”

The relevant public notice (entitled “Notice made under the Taxation (Cross-border Trade) Act 2018”) says that “A declarant may send a notification to HMRC asking to amend a declaration up to three years after a relevant event.”

HMRC provided guidance on the VAT regime applicable to imported gods in VAT Notice 702. Two relevant passages are:

“2.3

Who can reclaim import VAT as input tax

Subject to the normal rules, you can claim as input tax any import VAT you pay on goods, provided those goods are imported for the purpose of your business. Your claim must normally be made on the VAT Return for the accounting period during which the importation took place.

The normal evidence of payment of import VAT is the import VAT certificate (form C79), which is issued monthly. Section 8 gives more information about the C79, as well as the acceptable evidence for those types of importation that at present do not appear on a C79. It also explains what to do if you lose a certificate or have any queries about items missing from certificates.

….

8.2

What an import VAT certificate is

You need to hold official evidence of VAT paid on imported goods before you can recover the VAT as input tax. The normal evidence is the monthly certificate, known as form C79. It does not in itself allow you to claim back the VAT you have paid which must, in all cases, be deductible under the normal input tax rules.

We send the certificates (form C79) to the VAT, EORI-registered person whose VAT registration number is shown in box 8 of the import declaration. You must take great care to use the correct EORI number. If not, the VAT you have paid may not appear on your certificate and may even end up on another person’s certificate. Similarly, you may find someone else’s import VAT on your certificate.

We will take action against agents, importers who persistently quote incorrect EORI numbers. This may include prosecution.”

So far as appeals are concerned, section 83(1) of VATA provides that an appeal shall lie to the tribunal with respect to the matters listed in that subsection. So far as relevant for us, these matters include (item (c)) “the amount of any input tax which may be credited to a person.”

Section 84 of VATA makes further provision in relation to appeals and at subsection (10) it provides:

“Where an appeal is against an HMRC decision which depended upon a prior decision taken ... in relation to the appellant, the fact that the prior decision is not within section 83 shall not prevent the tribunal from allowing the appeal on the ground that it would have allowed an appeal against the prior decision.”

So far as striking out a party’s case, rule 8(2)(a) of the Rules provides as follows:

“(2)

The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—

(a)

does not have jurisdiction in relation to the proceedings or that part of them;”