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

Mr Moser submitted that the FTT had made no error of law on this issue. The FTT correctly concluded that the effect of Schedule 3 to the TTF Order was that section 84 (8) cannot in any event apply to any of the relevant decisions or to any (relevant) “decision” of HMRC notified to the Company on or after 1 April 2009.

The FTT was correct, Mr Moser said, in its conclusions recorded at FTT [96]-[97]. The Company’s contention that the relevant appealable “decisions” were taken before 1 April 2009 failed both as a matter of primary fact and as a matter of law. The Company did not appeal against some abstract or notional “decision of principle” nor could it had done so as a matter of law and having regard to the jurisdictional basis on which it seeks to base its claim for additional interest.

First, Mr Moser submitted that, as a matter of fact, the Company appealed against specific identified decisions made by HMRC. As to the Company’s section 80 claims, the Company appealed against HMRC’s specific decisions rejecting the Company’s section 80 claims, which were made in respect of specific prescribed accounting periods.

Secondly the Company’s case was inconsistent with the scheme of the VAT legislation, whereby VAT was accounted for and paid by reference to prescribed accounting periods. HMRC was only liable to credit or repay an amount under section 80 on a claim being made for the purpose by reference to individual prescribed accounting periods.

Thirdly, the Company’s argument depended on an interpretation of section 83(b) which gives the FTT jurisdiction in respect of a decision as to “the VAT chargeable on the supply of any goods or services…”. However, section 83(b) is subject to the jurisdictional requirement in section 84 (3) that an appeal shall not be entertained unless HMRC “have determined [the amount] to be payable as VAT.” The scenario put forward by the Company was premised on a “pre-1 April 2009 decision of principle as to the underlying VAT liability” having been taken in advance of (i) any supply by the Company, (ii) any over-declaration and overpayment of VAT by the Company, (iii) any section 80 claim by the Company and (iv) any decision on that claim by HMRC. In the circumstances, HMRC could not have determined any amount to be payable as VAT.