UT-2024-000123 - [2025] UKUT 00360 (TCC)

Mr Moser submitted that the FTT had wrongly decided that the amounts in issue in the appeals were amounts “paid in pursuance of section 84(3)” and that the conditions for the application of (8) were met. In short, Mr Moser’s argument was that the FTT wrongly decided that they were amounts “which the Commissioners have determined as payable” in connection with an appeal under section 83 (b).

Mr Moser argued that where HMRC did not assess the Company, and where the company’s appeals were brought under section 80(1) (i.e. lines 17 to 27 (1)) the FTT’s reasoning and conclusions were inconsistent with Cresta and BUPA No 2. (Footnote: ¹²) Secondly, Mr Moser submitted that in those cases where HMRC did assess the Company and where the Company’s appeals were brought under section 80(1A), the appeals were against refusals of claims under section 80(1A) not against the underlying assessments. The requirement under section 84(3) was for a determination to be made in relation to a specific supply and a specific VAT period.

Furthermore, Mr Moser contended that the FTT had erred in relying on HBOS plc and others v HMRC [2023] STC 245 (“HBOS”). That case concerned the interpretation of section 78 VATA and, in particular, whether the opening words “where due to an error on the part of the Commissioners” were limited to an error by HMRC as a body or included a statutory error. In that case, the taxpayer would have no right to interest unless it had an entitlement under section 78. By contrast, in the present case if, as HMRC contended, the Company has no right to interest under section 84 (8), it has a right to statutory interest under section 78, which right has already been exercised by the Company and satisfied by HMRC by payment.

Mr Moser also relied on a decision of the VDT in Peoples Bathgate & Livingston Ltd v CCE [1996] Lexis Citation 1656 and Seaton Sands v HMRC [1998] Lexis Citation 783 to support his argument that the Company did not pay or deposit any amount with HMRC in pursuance of section 84(3).