In Buckingham Bingo Ltd v HMRC, the Upper Tribunal (UT) has upheld the decision of the FTT that once a taxpayer has foregone its appeal against an HMRC ‘appealable’ decision, it cannot resurrect its right of appeal.
Buckingham Bingo Ltd (BBL) ran a bingo business. The underlying VAT dispute had arisen from HMRC’s change in policy which required taxpayers to account for VAT on a session basis, instead of game by game. BBL determined that, although this would not alter the total sums received, it did reduce the portion of the sums constituting participation fees subject to VAT. BBL therefore sought to recover output tax it considered to be wrongly overpaid. A claim for repayment was included in its 12/11 VAT return.
Following extensive correspondence, on 3 July 2012, HMRC issued a decision letter rejecting BBL’s claim for repayment (the 2012 letter). In September 2012, KPMG (who then represented BBL) wrote to HMRC to say that, while it did not agree with the decision, BBL had decided not to challenge the decision. It was common ground that this was an ‘appealable decision’ under section 83(1)(b), VATA 1994.
In September 2016, DLA Piper (who then represented BBL) wrote to HMRC seeking payment of the sum originally claimed in BBL’s 12/11 VAT return, relying on the decision of the FTT in K E Entertainments Limited v HMRC. There was further correspondence between the parties. In a letter sent on 5 January 2017 (the 2017 letter), HMRC confirmed that the 2012 letter contained its decision and it refused to undertake a late statutory review of that decision. BBL appealed the 2017 letter.
Before the FTT, HMRC applied to strike out the appeal. The FTT agreed with HMRC, concluding that the 2017 letter did not contain an ‘appealable decision’. That letter was simply a statement that HMRC considered there to be no outstanding issues between HMRC and BBL. The FTT struck out BBL’s appeal.
BBL appealed to the UT.
The appeal was dismissed.
The UT rejected BBL’s argument that because there was no time limit for making an adjustment under regulation 38 of the VAT Regulations SI 1995/2518, it was entitled to ask HMRC multiple times to repay output VAT following its adjustment, and therefore the 2017 letter was an appealable decision against which BBL could pursue an appeal. The UT accepted that provided BBL reflected the adjustment in the ‘right’ VAT period, there was no express deadline governing the making of the adjustment, but it did not follow that once BBL had made the adjustment it was able to request indefinitely that HMRC make a repayment and treat each response from HMRC as a new appealable decision.
The UT agreed with the FTT that the 2017 letter was not an appealable decision. It was simply a reaffirmation of the 2012 letter and was not therefore an appealable decision.
Finally, the UT found that the FTT had not made an error of law in refusing to exercise its discretion to allow a late appeal. The UT rejected BBL’s argument that the FTT had adopted the wrong approach. The UT referred to the approach adopted in William Martland v HMRC. Martland confirmed that there is no requirement to follow any checklist in determining a late application to amend grounds of appeal, and instead the FTT’s role is to take into account all relevant factors when exercising its judicial discretion.
The UT concluded that as four years had passed since HMRC’s appealable decision, the FTT was entitled to exercise its discretion to refuse the late appeal.
This decision is an important reminder to taxpayers of the importance of carefully evaluating whether or not to appeal a decision.
In this case, even though BBL had good prospects of success, the UT confirmed that the FTT was entitled to exercise its discretion and refuse a late appeal. It would appear that the UT was heavily influenced by the fact that BBL had taken a conscious decision in 2012, on professional advice, not to appeal against the 2012 letter and over four years had passed without BBL seeking to change its mind.
A copy of the decision can be viewed here.