Royal County Down Golf Club v Revenue & Customs (VAT - time limits) [2021] UKFTT 0070 (TC)

“On behalf of the above client we hereby submit a claim under the terms of Business Brief 07/08 and s80 VATA 1994 in respect of output tax overpaid (net of the related input VAT reduction) on green fee income for the period 1 January 1990 to 4 December 1996 and from 1 January 2006 to 31 December 2008. This claim is based on the recent ruling given by the European Court of Justice in the recent case involving Canterbury Hockey Club (Case ref EUECJ C-253/07) in which the court ruled that the expression “certain services closely related to sport” in Article 13A(1)(m) of Sixth Directive 77/388 does not allow member states to limit the exemption under that provision by reference to the recipients of the services in question. As such we consider that the sporting exemption afforded to playing members of Royal Co Down Golf Club from 1 January 1990 should be extended to visiting players. The amount of VAT involved in this claim totals £492,167. A summary of the claim is attached and detailed calculations are available for review at our Belfast office. The club also wishes to claim statutory interest (calculated on a compound basis) on the VAT currently being reclaimed.”

“The Canterbury Hockey case considered whether the term “person” should be restricted to individuals actually playing the sport or should be extended to other legal entities, such as corporate bodies. The Court’s ruling was that because Article 13 does not restrict the sporting exemption to any particular category of recipient the exemption cannot be restricted to any particular legal entity. It is HM Revenue & Customs view that the ruling in Canterbury Hockey has no bearing on the fact that greens fees are consideration for a taxable supply rather than exempt supply. As Article 13(A)(2)(b) has direct effect the UK is obliged make legal provision to exclude from exemption supplies made to obtain additional income which are in direct competition with commercial enterprises. HM Revenue & Customs consider green fees are taxable because they are for the purpose of obtaining additional income and are in direct competition with commercial enterprises, not because they are charged to non-members. The decision is based on the nature of the supply and not the nature of recipient, i.e. a natural person or an organisation.”

“We enclose herewith a summary of VAT reclaim in the above case. Full workings may be inspected at our Coleraine offices, at the address shown above. The reclaim is made in light of the ECJ’s decision in the case of Bridport & West Dorset Golf Club (C-495/12), in which it was decided that the UK’s treatment of green fees from non-members incompatible with the exemptions provided by the Principal VAT Directive. You will note that the total amount to be claimed amounts to £746,429. The Club also wishes to claim statutory interest on the amounts overpaid, calculated on a compound basis.”

“80. Credit for, or repayment of, overstated or overpaid VAT. (1) Where a person – (a) has accounted to the Commissioners for VAT for a prescribed accounting period (whenever ended), and (b) in doing so, has brought into account as output tax an amount that was not output tax due, the Commissioners shall be liable to credit the person with that amount. … (4) The Commissioners shall not be liable on a claim under this section – (a) to credit an amount to a person under subsection (1) or (1A) above, … If the claim is made more than 4 years after the relevant date. (4ZA) The relevant date is – (a) in the case of a claim by virtue of subsection (1) above, the end of the prescribed accounting period mentioned in that subsection, unless paragraph (b) below applies; (b) in the case of a claim by virtue of subsection (1) above in respect of an erroneous voluntary disclosure, the end of the prescribed accounting period in which the disclosure was made; …”

“37. Any claim under section 80 of the Act shall be made in writing to the Commissioners and shall, by reference to such documentary evidence as is in the possession of the claimant, state the amount of the claim and the method by which that amount was calculated.”

“[32] The FTT approached the question of whether a further demand is an amendment to an existing claim by adopting the test of whether it was shown to be 'in essence as one with an earlier claim': para [110]. In my judgment, there is nothing wrong with this test, but I am not sure it advances the matter significantly, and I do not think it is appropriate to add a gloss to the statutory wording. The FTT proceeded to hold as follows: ‘[111] That test, in our view, will be satisfied only if the later claim arises out of the same subject matter as the original claim, without extension to facts and circumstances that fall outside the contemplation of the earlier claim. Without deciding matters outside of this appeal, we consider, for example, that this would generally include cases where a particular computation was not made at the time of the original claim, but the subject matter of the claim was sufficiently identified for such a calculation made subsequently to be related back to the original claim. Simple calculation errors would similarly be included. It should also cover, we think, cases where particular items within the category of the subject matter of the original claim are unknown or not fully identified at the time of the original claim, and would but for that fact have been included in the original claim, but only subsequently come to light.’ [33] If subsequent to the submission of a claim, the taxpayer sends in the correction of a mistake, whether that be an arithmetical error or through the omission of some supplies that were clearly intended to be included, then I consider that would clearly not be a new claim but an amendment. Further, if the taxpayer making a claim says that he is not yet able to calculate the full figures and gather all the documentation as required by reg 37, but is in the course of doing so and will provide such further details as soon as possible, such further submission would not constitute a new claim but fall within the scope of the existing claim. Thus I consider that what is an amendment is very much a question of fact and degree, judged by the particular circumstances. I therefore respectfully agree with the test set out by the FTT in the first sentence of para [111]. However, of the examples given in that paragraph, I would not wish to approve in the abstract the final example: that would be for consideration on the particular facts of the case should it arise.”

“[35] As to Mr. Tack's second argument, I note that in Reed, Roth J. endorsed the point made by the FTT in the first sentence of paragraph 111 of its judgment, that the test of whether a subsequent claim should be regarded as an amendment of an original claim will be satisfied only if the later claim arises out of the same subject matter as the original claim, without extension to facts and circumstances that fall outside the contemplation of the earlier claim. [36] Put in those simple terms, it is clear that the Original Claim did not include and did not contemplate a repayment claim in respect of MSB, or a claim in respect of any supplies during periods prior to 1 November 1980. [37] As to a claim for MSB, the wording of the Original Claim could not have been clearer in referring only to MCB, AWP and JM. On any objective reading, the Original Claim did not include a claim in respect of MSB. Moreover, although I think that it is an objective test, it is apparent from the explanation that Mr. Deeming gave as to the advice he received before making that Original Claim and the subsequent advice he later received (I was advised that I could also claim for MSB) that no-one thought that the Original Claim did include a claim for MSB. The subsequent decision to make a claim for MSB was the product of analysis by the Appellant's advisers in light of the Revenue Briefings following the decision of the High Court in Rank in June 2009.”

“[54] It is apparent from s80(1) and (2) that the taxpayer’s claim must be a demand for a particular amount, namely the amount of output tax which was not due. However, the process of identification of a claim does not end there. Subsection (6) imports the mandatory requirements which are set out in reg 37. Although we agree that the regulation is primarily procedure rather than substantive, when it is read together with subs-s (1), (2) and (6) it is apparent not only that the requirements of writing, of the statement of the amount of the claim and of the method of calculation are obligatory, since without them there is no claim within the statutory meaning, but that they are also the elements which, together, identify the claim. [55] It follows that we do not accept Mr Hitchmough’s argument that a claim is defined by its amount alone. The argument is not consistent with the statutory words: reg 37 requires the claimant to state both the amount of the claim and the method by which that amount was calculated. We do not see any basis on which it could reasonably be concluded that the first is fixed and immovable whereas the second can be changed at will, as Mr Hitchmough’s argument implies. The draftsman has imposed two distinct even if interdependent requirements and there is nothing in the words used to suggest that one is more important than the other, or has a different character from the other. [56] We agree with Judge Mosedale that s80 and reg 37 carry with them an implicit requirement that a claimant should provide reasons sufficient to enable HMRC to understand why the claim has been made. We agree too with Mr Hitchmough that it would be strange if the implicit requirement of reasons were to be rigid while the mandatory requirements of reg 37 were flexible. The requirement to identify the methodology by which the amount of the claim is ascertained will, expressly or by necessary implication, identify the elements of the output tax brought into account which are said not to be output tax due. At least, we have been unable to conceive of a case where that requirement would not do so. In that sense, the reasons for the claim will be provided by the claim. But that is not the important point, which is that the requirement relating to methodology forms part of the identification of the claim, defining what the claim actually is.”

“[69] I cannot see any good reason for adopting a different approach to the interpretation of the jurisdiction of the tribunal in s83 of VATA. The tribunal is used to dealing with complex issues of tax law. There is no reason to think that it would not be competent to deal with issues of public law, in so far as they might be relevant to determine the outcome of any appeal. That view is reinforced by the fact that the tribunal may have to deal with complex public law arguments in relation to Convention rights when construing legislation under s3 of the Human Rights Act 1998, and is recognised by Parliament as being competent to do so. [70] Moreover, there is a clear public benefit in construing s83 by reference to its ordinary and natural meaning which strongly supports that construction. It is desirable for the tribunal to hear all matters relevant to determination of a question under s83 (here, the amount of input tax to be credited to a taxpayer) because (a) it is a specialist tribunal which is particularly well positioned to make judgments about the fair treatment of taxpayers by HMRC and (b) it avoids the cost, delay and potential injustice and confusion associated with proliferation of proceedings and ensures that all issues relevant to determine the one thing the HMRC and taxpayer are interested in (in this case, the amount of input tax to be recovered) are resolved on one occasion in one place. It seems plausible to suppose that Parliament would have had these public benefits in mind when legislating in the wide terms of s83.”

“5. Commissioners’ initial functions (1) The Commissioners shall be responsible for – (a) the collection and management of revenue for which the Commissioners of Inland Revenue were responsible before the commencement of this section, and (b) the collection and management of revenue for which the Commissioners of Customs and Excise were responsible before the commencement of this section, and (c) the payment and management of tax credits for which the Commissioners of Inland Revenue were responsible before the commencement of this section. (2) The Commissioners shall also have all the other functions which before the commencement of this section vested in (a) the Commissioners of Inland Revenue (or in a Commissioner), or (b) the Commissioners of Customs and Excise (or in a Commissioner). (3) This section is subject to section 35. (4) In thus Act “revenue” includes taxes, duties and national insurance contributions. … 9. Ancillary powers (1) The Commissioners may do anything which they think – (a) necessary or expedient in connection with the exercise of their functions, or (b) incidental or conducive to the exercise of their functions. (2) This section is subject to section 35. … 51. Interpretation … (3) A reference in this Act, in an enactment amended by this Act or, subject to express provision to the contrary, in any future enactment, to responsibility for collection and management of revenue has the same meaning as references to responsibility for care and management of revenue in enactments passed before this Act.”

“[41] There is in our judgment no room for doubt that the First-tier Tribunal does not have any judicial review jurisdiction. That was made abundantly clear by the House of Lords in Customs and Excise Comrs v JH Corbitt (Numismatists) Ltd [1980] STC 231, [1981] AC 22. That case related to the Value Added Tax Tribunals rather than the First-tier Tribunal, but they too were a creature of statute with no inherent jurisdiction, and the relevant principles are identical. Lord Lane (with whom the majority agreed) said, in what remains the classic statement on the point: 'Assume for the moment that the tribunal has the power to review the commissioners' discretion. It could only properly do so if it were shown the commissioners had acted in a way which no reasonable panel of commissioners could have acted; if they had taken into account some irrelevant matter or had disregarded something to which they should have given weight. If it had been intended to give a supervisory jurisdiction of that nature to the tribunal one would have expected clear words to that effect in the [Finance Act 1972]. But there are no such words to be found. Section 40(1) sets out nine specific headings under which an appeal may be brought and seems by inference to negative the existence of any general supervisory jurisdiction.' (See [1980] STC 231 at 239–240, [1981] AC 22 at 60–61.) [42] The Finance Act 1972 was at that time the statute conferring jurisdiction in VAT cases on the Value Added Tax Tribunals. A similar point was made by the High Court in Customs and Excise Comrs v National Westminster Bank plc [2003] EWHC 1822 (Ch) , [2003] STC 1072 , in the latter case, after analysis of the authorities, by adopting and endorsing what had been said by Moses J in Marks & Spencer plc v Customs and Excise Comrs [1999] STC 205 at 247: '… in so far as the complaint is not focused upon the consequences of the statute but rather upon the conduct of the commissioners then it is clear the tribunal had no jurisdiction. Its jurisdiction is limited to decisions of the commissioners and it has no jurisdiction in relation to supervision of their conduct.' [43] That the First-tier Tribunal has no judicial review function is, in addition, the only conclusion which can be drawn from the structure of the legislation which brought both that tribunal and this into being. The 2007 Act conferred a judicial review function on this tribunal, a function it would not have had (since it, too, is a creature of statute without any inherent jurisdiction) had the Act not done so; and it hedged the jurisdiction it did confer with some restrictions. It is perfectly plain, from perusal of the Act itself, that Parliament did not intend to, and did not, confer a judicial review jurisdiction on the First-tier Tribunal, and there is nothing in the more detailed legislation relating to tax appeals, the Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009, SI 2009/56, which points to a contrary conclusion. … [52] In our judgment neither Wandsworth v Winder nor Rhondda Cynon v Watkins offers any support to the proposition that the First-tier Tribunal is able to apply (to use the judge's terminology) 'sound principles of the common law' in order to reduce or discharge penalties imposed pursuant to statute. What was in issue in both of those cases was not whether the councils' actions were fair or reasonable, or indeed any general principle of the common law, but whether the actions they had taken had the effect for which they argued—that is, whether the rent had been validly increased, and whether the compulsory purchase order had been vitiated by a subsequent change of mind. Those questions may well have given rise to issues of public law, but they did not give rise to matters for which the only possible remedy is by way of judicial review; and they went, in each case, to the core of the individual's defence of the claims made against him.”

“[29] Finally, so far as what we said in Hok is of direct relevance to the present appeal, we also considered (see para [43] of our decision) the structure of the TCEA 2007 . We considered that the only conclusion which could be drawn from the structure of the legislation which brought both the FTT and the Upper Tribunal into being was that the FTT has no judicial review function. We noted that the TCEA 2007 conferred a judicial review function on the Upper Tribunal, a function it would not have had (since it, too, is a creature of statute without any inherent jurisdiction) had the Act not done so; and it hedged the jurisdiction which it did confer with some restrictions. We remain of the view that it is perfectly plain, from perusal of the Act itself, that Parliament did not intend to, and did not, confer a judicial review jurisdiction on the FTT, and there is nothing in the more detailed legislation relating to tax appeals, the Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009, SI 2009/56 , which points to a contrary conclusion. [30] It is clear that the TCEA 2007 does not confer a general supervisory jurisdiction. It is also the case that s 83(1) of the VATA 1994 does not confer a general supervisory jurisdiction, as Sales J recognised (see [2010] STC 686 at [73]); and there is no other provision of the VATA 1994 (or indeed any other legislation) which confers such a jurisdiction in relation to the legitimate expectation on which Mr Noor seeks to rely. [31] It does not follow from the analysis above that the FTT can never take account of or give effect to matters of public law, and in particular legitimate expectation. There are many examples in the authorities of a court or tribunal with no judicial review function giving effect to public law rights. Examples are given by Sales J in Oxfam and we will identify them when addressing his judgment. It would, however, be open to the FTT to consider public law issues only if it was necessary to do so in the context of deciding issues clearly falling within its jurisdiction. The central question in the present case is whether it was open to the tribunal to consider Mr Noor's case based on his legitimate expectation in deciding an issue within its jurisdiction. The answer to that question turns on the extent of the jurisdiction which is conferred by s 83(1)(c) of the VATA 1994, which comes down to a point of statutory construction. … [87] In our view, the FTT does not have jurisdiction to give effect to any legitimate expectation which Mr Noor may be able to establish in relation to any credit for input tax. We are of the view that Mr Mantle is correct in his submission that the right of appeal given by s 83(1)(c) is an appeal in respect of a person's right to credit for input tax under the VAT legislation. Within the rubric ' VAT legislation' it may be right to include any provision which, directly or indirectly, has an impact on the amount of credit due but we do not need to decide the point. Thus, if HMRC have power (whether as part of their care and management powers or some other statutory power) to enter into an agreement with a taxpayer and that agreement, according to its terms, results in an entitlement to a different amount of credit for input tax than would have resulted in the absence of the agreement, the amount ascertained in accordance with the agreement may be one arising 'under the VAT legislation' as we are using that phrase. In contrast, a person may claim a right based on legitimate expectation which goes behind his entitlement ascertained in accordance with the VAT legislation (in that sense); in such a case, the legitimate expectation is a matter for remedy by judicial review in the Administrative Court; the FTT has no jurisdiction to determine the disputed issue in the context of an appeal under s 83. As Mr Mantle puts it, the jurisdiction of the FTT is appellate (ie on appeal from a refusal of HMRC to allow a claim). The FTT has no general supervisory jurisdiction over the decisions of HMRC. That does not mean that under s 83(1)(c) the FTT cannot examine the exercise of a discretion, given to HMRC under primary or subordinate VAT legislation relating to the entitlement to input tax credit, and adjudicate on whether the discretion had been exercised reasonably (see eg Best Buys Supplies Ltd v Customs and Excise Comrs [2011] UKUT 497 (TCC) at [48]–[53], [2012] STC 885 at [48]–[53]—a discretion under reg 29(2) of the VAT Regulations). Although that jurisdiction can be described as supervisory, it relates to the exercise of a discretion which the legislation clearly confers on HMRC. That is to be contrasted with the case of an ultra vires contract or a claim based on legitimate expectation where HMRC are acting altogether outside their powers. [88] In our view, the subject matter of s 83(1)(c) ('the amount of input tax which may be credited to a person') is the input tax which is ascertained applying the VAT legislation. Input tax is a creature of statute under the VATA 1994, reflecting the provisions of, now, EC Council Directive 2006/112 of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p 1) (the principal VAT Directive). Similarly, the crediting of an amount of input tax is a matter of statute. The appellate jurisdiction of the FTT is formulated, in the case of s 83(1)(c), by reference to those concepts. The FTT is not, expressly at least, given jurisdiction under this provision to decide the amount of something which is not input tax and which is not to be credited in accordance with the statutory provisions. [89] Suppose then that a taxpayer had received express representations from HMRC sufficient to give rise to a legitimate expectation that certain amounts of VAT paid by the taxpayer would be allowed as input tax notwithstanding that those amounts are not input tax for which credit could be given pursuant to the legislation. Suppose that the Administrative Court were prepared to grant a remedy in order to give effect to that legitimate expectation. We are not clear precisely what such a remedy would be, but one thing it could not do would be simply to order that HMRC give credit for the input tax. Take the present case as an example. Obviously the Administrative Court could not declare the VAT on the invoices to be allowable input tax—it clearly was not. Indeed, it would not have been input tax even if Mr Noor had claimed it within the six-month time limit since it would only have been counted (s 24(6)(b)) or treated (reg 111(1)(a)) as input tax. Nor, we consider, could the Administrative Court order HMRC to authorise Mr Noor to treat the VAT on the invoices as if it were input tax for the purposes of reg 111(1): that would fly in the face of reg 111(2). What we think the Administrative Court could do is to order HMRC to treat Mr Noor as entitled to a credit of an amount equal to the VAT on the invoices. But that amount it not itself input tax nor is it treated as input tax. The credit which Mr Noor would receive is not a credit for input tax but is a financial adjustment to give effect to his legitimate expectation. Indeed, it is not a 'credit' within the meaning of the legislation since such a credit is only given for input tax. Instead, it is, as we have described it, a financial adjustment to be reflected in the account between the taxpayer and HMRC. [90] We can put this point in a slightly different way. The amount of input tax (or of any other VAT which can be treated as input tax) which may be credited to a person is, prima facie, to be determined in accordance with the statutory provisions. If the taxpayer has a legitimate expectation to be credited with input tax of a different amount, he may be given a remedy by the appropriate court or tribunal to reflect that legitimate expectation in financial terms. But that right does not affect what is 'input tax' (or what can be counted or treated under the legislation as input tax eg under s 24 or reg 111) or what can be 'credited' for input tax in accordance with the statutory provisions. The financial adjustment sits outside the amount of 'input tax which may be credited' to a person. The FTT has no jurisdiction to effect that financial adjustment since its jurisdiction under s 83(1)(c) relates only to 'input tax which may be credited' to a person. [91] Our conclusion, in the light of this discussion, is that the FTT has no jurisdiction over Mr Noor's claim to a credit in respect of VAT on the invoices. In so concluding, we disagree with and depart from the decision of Sales J. We have dealt already with the concerns which we have about his reliance on the position in relation to the contract issue and with the difficulty expressed in [2010] STC 686 at [77]. We wish to say something more, however, about his principal reason for deciding as he did, namely his perception of the 'ordinary meaning of the language' of s 83(1)(c) and the importance which he attached to the words 'with respect to'. We do not consider that the 'ordinary meaning of the language' is that which Sales J attributes to s 83(1); and we consider that the words 'with respect to' do not bear the weight with which he burdens them. [92] For our part, we consider that the ordinary meaning of the language used in the context of the VATA 1994 as a whole is that it is concerned with the right to a credit arising under the terms of the VAT legislation (including, on one view, HMRC's care and management powers). We have already given our main reason for reaching that conclusion in our analysis of what is meant by 'input tax' and 'credit' in s 83(1)(c). Further support for our conclusion is found when it is remembered that s 83(1) concerns appeals, that is to say appeals against decisions of HMRC. That makes perfectly good sense in the context of a decision concerning the matters listed in the paragraphs of s 83(1), and in particular concerning a decision in respect of a person's entitlement to an input tax credit under the VAT legislation. In the absence of an appealable decision, there is nothing to appeal and s 83 does not come into play. [93] So far as concerns the words 'with respect to', we do not agree that those words are wide enough 'to cover any legal question capable of being determinative of the issue of the amount of input tax which should be attributed to a taxpayer' at least not in relation to the 'amount of input tax' which should be attributed to a taxpayer. As we have said, we do not see any financial credit to which Mr Noor may be entitled by way of recognition of his legitimate expectation as 'input tax'. But clearly Sales J is including such financial adjustment within the phrase 'amount of input tax'. On that basis, Sales J's reading goes too far, in our view. It departs from the natural meaning of s 83(1)(c) which, reading the subsection as a whole, is focused on the large number of decisions on rights and obligations under the VAT legislation which HMRC have to make and in respect of which a specialist tribunal is provided. Quite apart from that, Sales J's reasoning applies to all of the paragraphs of s 83(1) and would be to give the FTT, as we have said, an extensive if not comprehensive judicial review jurisdiction. For reasons already given and with respect to Sales J, we do not consider that it is plausible to suppose that that is what Parliament intended.”

“[141] We have heard no argument about s 83(1), VATA and therefore express no view about the correctness or otherwise of the judge's interpretation of that section. But, in agreement with the Upper Tribunal, we do not consider that the decision in Oxfam v Revenue and Customs Comrs should be treated as authority for any wider proposition and we reject the suggestion that the reasoning of Sales J can or should be applied to the jurisdiction of the FtT and the Upper Tribunal to determine the appeals in this case. [142] The statutory jurisdiction conferred upon the FtT by s 3, TCEA 2007 is in our view to be read as exclusive and the closure notice appeals under Sch 1A, TMA do not extend to what are essentially parallel common law challenges to the fairness of the treatment afforded to the taxpayer. The extra-statutory concession is, by definition, a statement as to how HMRC will operate in the circumstances there specified and its failure to do so denies the legitimate expectation of taxpayers who had been led to expect that they would be treated in accordance with it. We are not concerned as in these statutory appeals with the direct application of the taxing instrument modified, or otherwise, by any relevant principles of EU law. The sole issue in relation to ESC B41 is whether it was fairly operated in accordance with its terms. [143] We therefore consider that the reasoning of Sales J in Oxfam v Revenue and Customs Comrs has no application to the statutory jurisdiction under s 3, TCEA 2007 in the sense of giving to the FtT and the Upper Tribunal jurisdiction to decide the common law question of whether HMRC has properly operated the extra-statutory concession. The appeals are concerned with whether the Trustees are entitled under s 231 to claim the benefit of the credits on FIDs and foreign dividends. Not with what is their entitlement under ESC B41. This reading of TCEA 2007 is strengthened by s 15, TCEA 2007 which gives the Upper Tribunal jurisdiction to decide applications for judicial review when transferred from the Administrative Court. It indicates that when one of the tax tribunals was intended to be able to determine public law claims Parliament made that expressly clear. There are no similar provisions in the case of the FtT.”

“[30] The principles that we understand to be derived from these authorities are as follows: (1) The FTT is a creature of statute. It was created by s. 3 of the Tribunals, Courts and Enforcement Act 2007 (“TCEA”) “for the purpose of exercising the functions conferred on it under or by virtue of this Act or any other Act”

“We have heard no argument about s. 83(1) VATA and therefore express no view about the correctness or otherwise of the judge's interpretation of that section.”

“(t) a claim for the crediting or repayment of an amount under section 80 an assessment under subsection (4A) of that section or an amount of such an assessment.”

“[77] In any case, we disagree with the suggestion concerning the plausibility of what Parliament can be supposed to have had in mind. There are several reasons for this, including these: a. If Parliament had intended to confer this jurisdiction on the VAT Tribunal, we would have expected it to say so clearly. Even as late as the passing of VATA 1994, a fortiori when the VAT Tribunal was first set up and given a statutory appellate jurisdiction, it would have been exceptional for an inferior tribunal to have a judicial review jurisdiction or an appellate jurisdiction allowing it to adjudicate on public law issues other than in the course of its statutory jurisdiction. VATA 1994 does not use words which clearly confer such a jurisdiction, reliance instead having to be placed on the words “with respect to”. b. In cases where an inferior tribunal is intended to have a judicial review function, express provision has been made. See, for instance, the powers given to the newly-created (and now abolished) Charity Tribunal under section 8 Charities Act 2006. c. We have referred to the structure of the tribunal system put in place by TCEA 2007 at paragraph 29 above. Parliament decided that the F-tT should not have a judicial review function; and although the Upper Tribunal does have a judicial review function, its jurisdiction usually comes into play on the transfer of a case commenced in the Administrative Court. It is only in a very limited class of case that a judicial review application can properly be commenced in and heard by the Upper Tribunal. It is well known that there was significant opposition even to these powers being conferred on the Upper Tribunal. It is simply inconceivable that Parliament would have contemplated conferring a similar power on the F-tT notwithstanding the two factors which Sales J identified and of which legislators were well aware. d. Just as it was inconceivable that the F-tT should be given a judicial review jurisdiction, so to it was not plausible, in our view, that Parliament, when enacting section 83 VATA 1994, intended to confer a judicial review function on the VAT Tribunal. e. We are bound to say that, if it was plausible in the way which Sales J suggests, it is very surprising that the point was not raised in litigation or otherwise many years before Oxfam came before the court. In fact, it was not raised as a plausible result before the VAT Tribunal even in Oxfam itself. As Sales J acknowledged, he was departing from a widely held view, a view which, on his approach, was entirely at odds with what Parliament is to be supposed to have wished to achieve. Although Sales J describes the view as widely held (and we do not know on what he based that description) we ourselves know of no contrary view being promoted as a correct view prior to the decision of Sales J himself.”

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

“3. Interpretation of legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section – (a) applies to primary legislation and subordinate legislation whenever enacted; (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility. … 6. Acts of public authorities (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if – (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. …”

“[28] The interpretative obligation of the courts under section 3 of the 1998 Act was the subject of illuminating discussion in Ghaidon v Godin-Mendoza [2004] 2 AC 557 . The majority opinions of Lord Nicholls, Lord Steyn and Lord Rodger of Earlsferry in that case (with which Baroness Hale of Richmond agreed) do not lend themselves easily to a brief summary. But they leave no room for doubt on four important points. First, the interpretative obligation under section 3 is a very strong and far reaching one, and may require the court to depart from the legislative intention of Parliament. Secondly, a Convention-compliant interpretation under section 3 is the primary remedial measure and a declaration of incompatibility under section 4 an exceptional course. Thirdly, it is to be noted that during the passage of the Bill through Parliament the promoters of the Bill told both Houses that it was envisaged that the need for a declaration of incompatibility would rarely arise. Fourthly, there is a limit beyond which a Convention-compliant interpretation is not possible, such limit being illustrated by R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 and Bellinger v Bellinger (Lord Chancellor intervening) [2003] 2 AC 467 . In explaining why a Convention-compliant interpretation may not be possible, members of the committee used differing expressions: such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation (paras 33, 49, 110-113, 116). All of these expressions, as I respectfully think, yield valuable insights, but none of them should be allowed to supplant the simple test enacted in the Act: “So far as it is possible to do so …”

“[30] Any interference with property rights must be proportionate but, as Mr Sherry recognises, in the field of tax the jurisprudence of the Convention gives a large margin of discretion to the national authorities in the determination of what is proportionate. He submits that this principle does not apply here because no tax was due. In any event, on his submission, the state is in a better position to bear the loss. He submits that it is not proportionate to impose the burden on individuals. [31] Mr Carr submits that the taxation provisions of contracting states fall within the rule in the second paragraph of A1P1 and that this includes laws which the contracting state deems necessary to secure the payment of taxes (see generally National & Provincial Building Society v UK (Application 21319/93) [1997] STC 1466, (1997) 25 EHRR 127, paras 78 to 80 of the judgment). He emphasises that under Convention jurisprudence a wide margin of appreciation is allowed to member states. [32] In any event, he submits that s 33 does not violate A1P1 because it provides for the recovery of excessive payments of tax within the limits of what the legislature determines is reasonable. Moreover, the taxpayer has the right of appeal. The state has a legitimate interest in ensuring finality of fiscal transactions. Because under s 33 the error must be generally prevailing, the individual is not left to shoulder the burden of the payment. To allow for repayment where there has been a generally prevailing practice would expose the state to a large number of claims and increase the risk of disruption to public finances, shifting the burden of taxation to other groups or leading to the reimposition of the same tax on the same group in a different manner. [33] I agree with Mr Carr's submissions. Legislation in relation to claims to recover payments made in error as to whether they are due as tax is subject to the same principles as the taxing legislation itself. Therefore, a wide margin of discretion must be allowed to national authorities in the determination of policy in relation to claims to recover tax. In this case, there is an obvious and rational policy explanation for the limitation in s 33(2A). I am therefore satisfied that there is no violation of A1P1.”

“[68] The Court has considered limitation periods as such in the context of Art.6 of the Convention in the case of Stubbings v United Kingdom . It held as follows: “It is noteworthy that limitation periods in personal injury cases are a common feature of the domestic legal systems of the Contracting States. They serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time.” [69] Although that statement referred to limitation periods in personal injury cases in the context of Art.6 , the Court considers that it can also be applied to the situation where limitation periods in actions for recovery of land are being assessed in the light of Art.1 of Protocol No.1. Indeed, the parties do not suggest that limitation periods for actions for recovery of land do not pursue a legitimate aim in the general interest. … [84] As to the loss for the applicant companies, it is not disputed that the land lost by them, especially those parts with development potential, will have been worth a substantial sum of money. However, limitation periods, if they are to fulfil their purpose, must apply regardless of the size of the claim. The value of the land cannot therefore be of any consequence to the outcome of the present case.”

“[37] The crunch question was whether, on Convention principles, the retrospective effect of s58 imposed an unreasonable burden on the claimant ‘and thereby failed to strike a fair balance between the various interests involved’: MA v Finland (2003) 37 EHRR DC 210. The judge concluded that the challenged legislation, even though retrospective, did strike a fair balance: it was proportionate and compatible with art 1 of the First Protocol. … [57] In my judgment, the judge correctly directed himself on the issue of fair balance and proportionality and fully understood the purpose and structure of the DTAs and the way in which the Isle of Man DTA was being used in the scheme for quite a different purpose than its intended double taxation purpose: to provide tax relief of UK residents. Nothing in his judgment was contrary to the true scope of the cited authorities of Draon and MA v Finland . As for Pressos the state in this case was not relying on purely ‘financial concerns’ to justify retrospective legislation and the judge did not base his decision on such concerns. He focused correctly on whether the retrospective measures achieved a fair balance between community interests and individual rights and whether they placed an unreasonable burden on the claimant. He did not give too much weight to the policy justification relied on by HMRC.”

“[34] It should be recalled at the outset that in the absence of Community rules on the repayment of national charges wrongly levied it is for the domestic legal system of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (the principle of equivalence) and, secondly, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (the principle of effectiveness): see, inter alia , Aprile Srl v Amministrazione delle Finanze dello Stato (No 2) (Case C-228/96) [2000] 1 WLR 126 , 148, para 18; Dilexport [1999] ECR I-579 , 611, para 25 and Metallgesellschaft [2001] Ch 620 , 663, para 85. [35] As regards the latter principle, the court has held that in the interests of legal certainty, which protects both the taxpayer and the administration, it is compatible with Community law to lay down reasonable time limits for bringing proceedings: Aprile, paragraph 19, and the case law cited therein. Such time limits are not liable to render virtually impossible or excessively difficult the exercise of the rights conferred by Community law. In that context, a national limitation period of three years which runs from the date of the contested payment appears to be reasonable: see, in particular, Aprile , paragraph 19 and Dilexport, paragraph 26. [36] Moreover, it is clear from Aprile [2000] 1 WLR 126 , 149, para 28, and Dilexport [1999] ECR I-579 , 616, paras 41 and 42, that national legislation curtailing the period within which recovery may be sought of sums charged in breach of Community law is, subject to certain conditions, compatible with Community law. First, it must not be intended specifically to limit the consequences of a judgment of the court to the effect that national legislation concerning a specific tax is incompatible with Community law. Secondly, the time set for its application must be sufficient to ensure that the right to repayment is effective. In that connection, the court has held that legislation which is not in fact retrospective in scope complies with that condition.”