TC09680 - [2025] UKFTT 01332 (TC)

Fecha: 24-Jun-2025

Conforming interpretation

Conforming interpretation

26.

Alternatively HMRC say the Tribunal must apply a conforming interpretation in conformity with Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) [1990] ECR I-4135 (“Marleasing”). The scope of the Marleasing principle of interpretation was set out by Sir Andrew Morritt C in Vodafone 2 v HMRC [2009] EWCA Civ 446, [2009] STC 1480 (“Vodafone 2”) at [37]-[38] (the passage being subsequently approved by the Supreme Court in Robertson v Swift [2014] UKSC 50, [2014] 1 WLR 3438).

27.

HMRC submit that in Leisure, Independence, Friendship, and Enablement Services Ltd v HMRC [2020] EWCA Civ 452; [2020] STC 898 (“LIFES”) the Court of Appeal considered Article 132(1)(g) of the Principal VAT Directive and found that:

(1)

its objective is, “to reduce the cost of welfare services and to make them more accessible to the individuals who may benefit from them” (at [40]); and

(2)

fiscal neutrality “requires, in principle, that all the organisations other than those governed by public law be placed on an equal footing for the purposes of their recognition for the supply of similar services” (at [48]).

28.

HMRC then refer to Arnold LJ’s decision in LIFES at [93] and state that Cascade’s position would result in an impermissible discrimination between what are, in substance, entirely comparable state-regulated providers where the devolved legislature of Wales has expressly, and legitimately, sought to regulate the provision of the relevant services. Accordingly they say that the Marleasing principle should be applied to favour an interpretation that conforms with fiscal neutrality.

29.

HMRC observe that the application of the Marleasing principle in such circumstances is consistent with the saving provisions set out in s 28 Finance Act 2024.