DCM (Optical Holdings) Ltd v Commissioners for His Majesty's Income and Customs (Respondent) (Scotland) [2022] UKSC [26]

On attraction from: [2020] CSIH 60

The claimant on this case is a VAT-registered enterprise principally specializing within the sale of distributed spectacles and laser eye surgical procedure underneath the identify Optical Specific. VAT operates in a big measure by self-assessment, with taxable individuals submitting periodic self-assessment returns to His Majesty’s Income and Customs (“HMRC”). The claimant is a “partially exempt” particular person for VAT functions, because it makes each provides on which VAT is chargeable (comparable to the provision of frames and lenses) and provides that are exempt from VAT (comparable to meting out companies). The place a taxable particular person makes each taxable and exempt provides, part 19(4) of the Worth Added Tax Act 1994 (“VATA”) offers that the consideration (which was, in DCM’s case, the value paid for its items and companies) needs to be accredited between the taxable and exempt components.

The primary situation earlier than the Supreme Court docket involved an evaluation issued to the claimant by the respondent on 20 October 2005 which was disputed in relation to under-declared output VAT (the VAT on DCM’s gross sales) for accounting durations from October 2002 to July 2003. When confronted with an incomplete or incorrect VAT return, part 73 of VATA empowers HMRC to make an evaluation of the VAT due not later than whichever is the later of (a) two years after the tip of the accounting interval; or (b) one yr after proof of details involves HMRC’s information which is, in HMRC’s opinion, ample to justify making the evaluation. DCM argued that HMRC knew that “one thing was incorrect” with its apportionment methodology by January 2004 and, from then, had one yr to make their evaluation. This meant that they had been out of time to take action for the related accounting durations by October 2005, making their purported evaluation invalid (“time bar problem“).

The place VAT is charged to a taxable particular person on items and companies that it purchases, it’s doable for that particular person to reclaim it as enter VAT by setting it off towards its output VAT. Underneath part 25(3) of VATA, if there isn’t any output VAT or the quantity of enter VAT exceeds its output VAT, then the quantity of the surplus should be paid to the taxable particular person by HMRC as a VAT credit score. The second situation earlier than the Supreme Court docket considerations disputed choices by which HMRC decreased the VAT credit which DCM had submitted in its returns. DCM argued that HMRC didn’t have the ability to make the related reductions as part 25(3) of VATA mandated HMRC to pay DCM the VAT credit which it claimed (“vires problem“).

DCM was unsuccessful in each of its challenges earlier than the First-Tier Tribunal, though the Higher Tribunal allowed the time bar problem. The Internal Home of the Court docket of Session allowed HMRC’s attraction on the time bar problem and dismissed DCM’s attraction on the vires problem.

HELD – Attraction unanimously dismissed. The Supreme Court docket dismissed DCM’s vires problem as HMRC did have the ability to make the related reductions.

Challenge 1: The time bar problem

It was frequent floor between the events that “information” in part 73 of VATA meant precise, slightly than constructive, information (constructive information being information which HMRC didn’t, in reality, have, however which they might have had if that they had taken the mandatory steps to amass it).

The Supreme Court docket holds that, when contemplating part 73 of VATA, a courtroom should first determine what had been the details which, in HMRC’s opinion, justified the making of the actual evaluation after which decide when the final piece of proof of these details was communicated to HMRC. It’s from this date that the interval of 1 yr begins to run. HMRC obtained the final items of proof related to the evaluation of October 2005 (together with, for the primary time, from DCM’s VAT account) on 31 August and 1 September 2005, earlier than which period HMRC didn’t have proof of details ample to justify that evaluation . It was then that the clock started to run. The Supreme Court docket due to this fact dismisses DCM’s time bar problem as HMRC weren’t out of time to make that individual evaluation.

Challenge 2: The vires problem

HMRC’s powers are set out in statute both expressly or by implication.

It was frequent floor that HMRC have each an influence and an obligation to conduct an affordable and proportionate investigation into the validity of VAT credit score claims. That being accepted, the Supreme Court docket finds that the query turns into whether or not HMRC have the ability to present impact to the results of this verification course of by refusing to pay a declare. There isn’t a specific energy to refuse to pay a declare so any energy to take action, if it exists, should come up by implication.

The Supreme Court docket finds that it’s implicit in part 25(3) of VATA that the duty on HMRC to pay a VAT credit score arises solely as soon as it’s established by the verification course of that the VAT credit score is due: the duty to pay doesn’t rely solely on the say-so of the taxable particular person. The existence of an influence and responsibility to confirm and, the place justified, refuse to pay a claimed VAT credit score shouldn’t be inconsistent with the statutory provisions of VATA, and is implicit in HMRC’s responsibility to “be liable for the gathering and administration of VAT,” as set out in paragraph 1 of Schedule 11 to VATA. The implied energy is per the aim of making certain that the taxable particular person pays the correct amount of VAT or receives the correct amount of VAT credit score.

The implied energy can be per the precept of fiscal neutrality, which underpins VAT jurisprudence and duties HMRC with verifying a taxable particular person’s claims and refusing to pay sums which aren’t due. It doesn’t contain unjustified discrimination between fee merchants and compensation merchants.

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8 Feb 2022 Morning session Afternoon session