In Grand Entertainments Co v HMRC4, the Upper Tribunal (UT) has upheld the decision of the FTT which refused the taxpayer’s claim for repayment of VAT.

Background

The taxpayer was the operator of a bingo and social club. Following a successful claim for repayment of VAT by a bingo operator in Rank Group Plc v HMRC5, the taxpayer lodged a claim for repayment on 19 March 2009. The claim related to services supplied in respect of mechanised cash bingo and gaming machines in the period between 1980 and 1996. HMRC accepted the part of the claim concerning mechanised cash bingo, but rejected the part concerning gaming machines.

In November 2009, the taxpayer wrote to HMRC attempting to amend the original claim to include main stage bingo (bingo played in the traditional way) for the same accounting period. It lodged a further amendment in January 2010, extending its claim to cover the period from 1973 to 1980. HMRC rejected the November 2009 and January 2010 letters on the basis that they amounted to fresh claims and were accordingly out of time.

The taxpayer appealed to the FTT where it was unsuccessful. The taxpayer then appealed to the UT.

UT’s decision

In the view of the UT, by reason of the taxpayer’s outstanding appeal against HMRC’s rejection of part of the original claim, the original claim was still outstanding and was therefore capable of amendment in November 2009 and January 2010. However, in Reed Employment Ltd v HMRC6, the UT concluded that the test for whether a subsequent claim should be regarded as an amendment will be satisfied only if the later claim arises from the same subject matter as the original claim, without extension to the facts and circumstances contemplated by the earlier claim. In the current case, it was clear that the March 2009 claim had not included main stage bingo, or the period prior to 1980. These were fresh demands and therefore could not be construed as amendments to the original claim.

Under section 80(4), VATA 1994, claims for repayment must be made within three years of the accounting period to which they relate. Under section 121, Finance Act 2008, that time limit does  not apply to claims made prior to 1 April 2009. The UT concluded that, unlike the claim made in March 2009, the November 2009 and January 2010 letters did not fall within section 121 and were accordingly time-barred by section 80(4). In the view of the UT, a conclusion that a later claim could always be regarded as an amendment to an earlier claim in respect of the same or similar supplies would significantly undermine the effectiveness and purpose of section 80 and would not encourage accuracy and finality in the submission of claims.

Comment

The UT noted that HMRC was taking the view that VAT was chargeable on main stage bingo games at the time the original claim was made. If, however, the taxpayer was dissatisfied with this approach, the prudent course (in light of the 1 April 2009 cut-off) would have been to  lodge a claim for main stage bingo and appeal its rejection. Similarly, the taxpayer ought to have claimed in respect of the earlier period on the basis of a best estimate, and later amended the claim to provide a more accurate figure.

A copy of the UT’s decision is available to view here.