TC09644 ****** - [2025] UKFTT 01121 (TC)

The parties disagree over when under the legislative framework PO must have (in the language of s 41(3) FA 1996) either (i) made the disposal, or (b) knowingly caused or knowingly permitted the disposal to be made.

Mr McNamee points to how s 41 FA 1996 was amended to impose liability on a person who makes a taxable disposal not made at a landfill site. He says that a disposal made at a non-landfill site prior to the amendments brought about by FA 2018 could not be a taxable disposal, because before April 2018 no such disposal was liable for tax.

Mr McNamee says there is no equivalence between physical deposit and disposal. For example a disposal may take place when a waste licence expires at a time long after the deposit of the material.

Accordingly Mr McNamee says that the date the Tribunal must consider is 1 April 2018 in considering PO’s capacity, to determine whether PO made, or knowingly caused/permitted the disposal.

HMRC say that this approach is not workable. To require an appellant to have a continuing state of mind on 1 April 2018 would render futile the provisions. HMRC concede that it is necessary for the waste still to be present on 1 April 2018. They say that is because of the reference to “has been made” (rather than “was made”) in paragraph 31(1) of Schedule 12 FA 2018.

We agree with HMRC. We consider that the legislation operates by creating a legal fiction that the disposal took place on 1 April 2018. However it does not go beyond that. Provided that the waste remains on the land on 1 April 2018 one looks at the circumstances of the actual disposal (which may be before 1 April 2018) to determine whether the appellant made, or knowingly caused/permitted the disposal.

That is clear from the language of paragraph 31(1) of Schedule 12 FA 2018. That refers to the disposal. If Mr McNamee were right it would render the deliberately retroactive nature of the legislation largely ineffective, as it would generally be necessary to point to conduct after 1 April 2018 to infer an intention to knowingly permit the disposal of material that was already on the land. We do not consider that the exceptional circumstance of a licence expiring provides significant guidance on the interpretation of the provision, as the more usual circumstance for a disposal is when it is placed in the land. That is clear from section 40A FA 1996.