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Ground 4 – FTT wrongly relied on terms of VAT Notice 725 to exclude P&O boarding cards and other supplementary evidence
Ground 4 – FTT wrongly relied on terms of VAT Notice 725 to exclude P&O boarding cards and other supplementary evidence
Under this ground it is argued the FTT were wrong to exclude the P&O boarding cards in its evaluation of the evidence (which it said were available in the case of 48 out of the 72 sales).
The FTT did so by reason of paras 4.5 and 4.4 of VAT Notice 725 explaining at [127]:
‘the onus is on [the Appellant] (as the company claiming zero-rating) to gather sufficient evidence of removal within three months of the date of supply. If [the Appellant] do[es] not do so, [it is] not entitled to zero-rate their supplies.’
The FTT found at [139] that this requirement had not been met. The boarding cards were provided to HMRC shortly after they were provided by Mr Callewaerts “some 18 to 30 months after the disputed consignments took place”. The Appellant does not take issue with that factual finding but argues that, while paragraph 4.4 says that a trader must have sufficient commercial evidence within paras 5.1 and 5.2 obtained within three months of sale to justify zero-rating, it does not say that supplementary evidence may not be obtained after that date. That possibility, it argues, is consistent with the Court of Appeal’s position in Musashi Autoparts Europe Ltd v C & E Comrs [2003] EWCA Civ 1738.
- Heading
- Introduction
- law
- Background and FTT Decision
- Grounds of appeal
- Ground 2 – failure to draw the only reasonable conclusion from the evidence
- Appellant’s Ground of Appeal
- Discussion
- Ground 3 – erroneous evidential standard – reliance on Griffiths v TUI in Court of Appeal – which was overturned in Supreme Court
- Ground 4 – FTT wrongly relied on terms of VAT Notice 725 to exclude P&O boarding cards and other supplementary evidence
- Discussion on Ground 4
- Ground 5 - failure to apply EU law
- Ground 6 – Failure to find evidence of commercial system
- Ground 1 – unacceptable delay
- Conclusions