COMMISSIONERS OF CUSTOMS & EXCISE v CRESTA HOLIDAYS LTD & ORS [2001] EWCA Civ 215

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE LIGHTMAN
(CHANCERY DIVISION: REVENUE LIST)
[2001] EWCA Civ 215Case No Case No: A3/2000/0318Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 20th February 2001
Between
COMMISSIONERS OF CUSTOMS & EXCISERespondentCRESTA HOLIDAYS LTD & ORSAppellants
Before
Lord Justice Simon BrownLord Justice Robert WalkerLord Justice KeeneMr G. Barling QC & Mr M. Conlon (instructed by K Legal, Solicitors, London EC4Y 8AE) for the AppellantsMr P. Lasok QC & Mr M. Patchett-Joyce (instructed by Solicitor, H.M. Customs and Excise, London SE1 9PJ) for the RespondentsDate 20 February 2001

LORD JUSTICE SIMON BROWN:

Preface

[1]This is the Airtours Companies' appeal against the order of Lightman J on 2 February 2001 striking out their appeals (the IPT appeals) to the VAT and Duties Tribunal. It has been heard with great urgency because the IPT appeals themselves are listed for hearing by the Tribunal on 26 February and for the same reason we have striven to produce early judgments. To this end I am taking the somewhat unusual course of incorporating the entirety of the judgment below as, so to speak, chapter 1 of my own judgment, to be taken not merely as read but as the starting point for such further consideration of the issues as remains necessary. This opening paragraph should accordingly be regarded merely as a preface to a composite judgment, my own simply following on from that of the Judge below. Lightman J's judgment[2]Lightman J's central conclusions can, I think, be summarised as follows: 1. The CCEs' November 1999 letters constituted reviewed decisions confirming two October 1999 decisions:(i) that the higher rate of tax was properly chargeable (decision 1);(ii) rejecting the Airtours Companies' claim to be paid the differential (decision 2) (Paragraphs 13 and 14 of Lightman J's judgment). 2. Decision 1 was not a s.59(1)(b) decision because the question as to the chargeability of the tax had been raised after, rather than before, the tax was paid. Once payment has been made, the only relevant decision for s.59(1) purposes is one under paragraph (l), a decision on a claim for repayment. The two regimes are distinct and mutually exclusive. (Paragraph 18 for the reasons given in paragraphs 15 and 16). 3. Decision 2 was not a s.59(1)(l) decision because a claim for repayment under paragraph 8 of Schedule 7 can only be made by the taxpayer himself, here the insurers, CGNU. (Paragraph 20 for the reason given in paragraph 19(a)). 4. Accordingly the decisions on review were not reviewed decisions for s.59(2) purposes (and thus gave rise to no appeal rights under s.60(1)(a)). However wide a meaning is given to the words in S.59(2) "any person who is or will be affected by any decision", that decision must first be one "to which this section applies". It applied to neither decision here. (First part of paragraph 23). 5. The Airtours Companies' alternative argument to the effect that the November letters confirmed a separate decision by the CCE rejecting CGNU's (rather than the Airtours Companies') claim to be paid the differential (decision 3) failed for two distinct reasons: (i) there was no such third decision; true, the CCE had stated that "they would reject any claim for repayment by an eligible claimant" (i.e. by CGNU as the taxpayers), but it was not the Airtours Companies who were making such a claim so that the CCE's statement was not a decision in respect of a claim for repayment within the meaning of s.59(1)(l), and (ii) because, even if there were a third decision which was within paragraph (l), the Airtours Companies were not a person "affected" by it and so could not require a review and thereby become entitled to an appeal. (Middle section of paragraph 23). 6. Even had the Airtours Companies attempted to acquire a right of appeal by requiring a review of the CCE's October 1999 decision refusing CGNU's own claim for repayment of the differential (which in fact they never have done), such an attempt would in any event fail, for the same reason set out in paragraph 5(ii) above, namely that they were not a person "affected" by that decision. (End of paragraph 23). Conclusion 1 - the decisions were reviewed decisions Conclusion 2 - paragraphs (b) and (l) are mutually exclusive Conclusion 3 - only the taxpayer can make a repayment claim Conclusion 4 - that neither decision fell within s.59(1) Conclusion 5 - the Airtours Companies' alternative argument based on the CCE's November letters failed Conclusion 6 - the Airtours Companies are not a person "affected" Result LORD JUSTICE ROBERT WALKER:

LORD JUSTICE KEENE:

"(4) Where the appeal is against a decision with respect to any of the matters mentioned in paragraphs (b) and (d) of section 59(1) above it shall not be entertained unless- (a) the amount which the Commissioners have determined to be payable as tax has been paid or deposited with them, or (b) on being satisfied that the appellant would otherwise suffer hardship the Commissioners agree or the tribunal decides that it should be entertained notwithstanding that that amount has not been paid or deposited. ... (6) Where on an appeal under this section it is found that the whole or part of any amount paid or deposited in pursuance of subsection (4) above is not due, so much of that amount as is found not to be due shall be repaid with interest at such rate as the tribunal may determine."

ORDER

Appeal allowed with regard to the s 59 (1) (b) issue and dismissed with regard to the 59 (1) (l) issue. The order below to be amended to reinstate the permission to appeal on s 59 (1) (b) granted by the tribunal, but struck out by the court below. Permission to appeal to the House of Lords refused. The appellant's to have half their costs of the action (in the tribunal, the court below and here). (Order does not form part of approved Judgment)

Cited in 7 later judgments