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

Essentially, the post-April 2009 Objection is that the FTT had no jurisdiction to award additional interest under section 84 (8) in respect of a decision taken on or after 1 April 2009 or relating to VAT repaid in respect of prescribed accounting periods after that date.

The FTT’s discussion of this issue is contained in [86]-[105] of the Decision.

At [95] the FTT considered that the language of paragraphs 4, 6, 7 and 9 of Schedule 3 TTFO related to the different stages of challenge against specific decisions of HMRC referring to the decision of the High Court in Touchwood Services Ltd v HMRC [2007] (“Touchwood”) EWHC 105, the Upper Tribunal in Earlsferry Thistle Golf Club v HMRC [2014] UKUT 0250 (“Earlsferry”) and the FTT in Mather v HMRC [2014] UKFTT 1062 (“Mather”). Those specific decisions were capable of and were then actually appealed to the VDT/FTT, thereby invoking the FTT’s jurisdiction under section 84(8). For section 84(8) to have continuing application, the appealable decision had to predate 1 April 2009.

At [96]-[99] and [102] the FTT stated:

“96.

Each of the appeals referenced in lines 18 - 20, 23 - 24 and 27(2) were made in respect of individual appealable decisions i.e. they relate to matters within section 83 VATA which are adverse to the Appellant in a specific and identified regard being an assessment or rejected claim and the decision in each case post-dates 1 April 2009 such claims and assessments arising consequent upon a dispute regarding the VAT liability of the underlying supplies.  In our view they are not within the terms of the transitional provisions of Schedule 3 TTFO.

97.

We do not consider that the individual decisions can in some way be ignored in favour of a more general and underpinning dispute or decision concerning the VAT chargeable on the supplies as the right under s84(8) to first repayment and consequently to interest arises in respect of amounts determined as repayable pursuant to a tribunal appeal.  The extent to which the subject matter of the appeal is determinative of an entitlement to s84(8) Interest is considered below in connection with the Section 80 Objection; but for present purposes in order for there to be an amount determined as repayable on an appeal there must be an amount which is identified within the scope of the appeal by reference to the decision under appeal i.e. the individual decision of HMRC adverse to the taxpayer in a specific and identifiable amount.  It is a such a decision which must have been made and notified prior to 1 April 2009 in order for s84(8) Interest to be payable.

98.

We have also considered whether, to the extent that the decisions which post-date 1 April 2009 relate to prescribed accounting periods prior to that date, an inchoate right to interest had accrued.  In this regard we have carefully considered the FTT judgment in Emblaze. 

99.

We have concluded that there was no such right.

…

102.

For the reasons given at paragraph 96 such rights had not accrued to the Appellant regarding lines 18 - 20, 23 - 24 and 27(2).”