Thomas Joseph Dowey v The Commissioners for HMRC [2026] UKFTT 626 (TC)

[2026] UKFTT 00626 (TC)Case No TC 09860
FIRST-TIER TRIBUNAL
TAX CHAMBER
Date Judgment date: 24 April 2026
Between
THOMAS JOSEPH DOWEYAppellantTHE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMSRespondent
Location: Decided on the papers
Appeal reference: TC/2025/04848
VALUE ADDED TAX – jurisdiction of the Tribunal – strike-out application – repayment of overpaid VAT– whether any right of appeal exists under section 83(1)(t) VATA 1994– no jurisdiction – appeal struck out under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009
Decided By:
TRIBUNAL JUDGE STAPENHURST
The Tribunal determined the appeal on 16 April 2026 without a hearing, pursuant to Rule 26 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, having considered the Notice of Appeal dated 10 November 2025 and HMRC’s application to strike out dated 22 January 2026.DECISION

Introduction

[1]This is an application by the Respondents ("HMRC") to strike out the Appellant's appeal pursuant to Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 ("the Tribunal Rules") on the basis that the Tribunal has no jurisdiction to hear it.[2]The Appellant seeks repayment from HMRC of value added tax (“VAT”) in the sum of £4,900, which he contends was incorrectly charged to him by his supplier, Wilsons (“the Supplier”). He contends that the VAT was charged in error because the relevant supplies were eligible for zero-rating as part of the construction of a new dwelling. HMRC refused the claim by a decision dated 29 April 2025. Following a request for review, that decision was upheld by a review conclusion letter dated 13 October 2025. The Appellant notified his appeal to the Tribunal on 10 November 2025.[3]HMRC submits that the appeal must be struck out because the Tribunal has no jurisdiction to entertain it. The basis of that submission is that the only person who is entitled to claim repayment of overpaid VAT from HMRC under s80 of the Value Added Tax Act 1994 ("VATA 1994") is the person who accounted for that VAT to HMRC on a VAT return. The Appellant, as the recipient of the supply, did not account for the VAT to HMRC; that was the Supplier. Accordingly, there is no valid claim under s80 VATA 1994 and no corresponding right of appeal to this Tribunal under s 83(1)(t) VATA 1994.[4]On 19 February 2026, the Appellant was invited to make representations in response to HMRC’s strike-out application by 5 March 2026. No representations were made.

Facts

[5]The Supplier made supplies of ‘Bespoke Kitchen & Island’ to the Appellant and charged VAT at the standard rate, totalling £4,900.[6]The Appellant paid the VAT charged by the Supplier. The Appellant contends that the VAT was not properly due because the supplies should have been zero-rated for VAT by the Supplier as part of the construction of a new dwelling.[7]The Appellant made a claim for a VAT refund, in the amount of £26,529.07, under the DIY housebuilders scheme. The only part of that claim that is in dispute between the parties relates to invoice 293, totalling VAT of £4,900 in respect of the supply of a ‘Bespoke Kitchen & Island’.[8]On 29 April 2025 the DIY housebuilders scheme team at HMRC issued their decision letter rejecting the VAT refund claim. The basis for the rejection of this claim was that the Supplier should not have charged VAT to the Appellant[9]The Appellant requested a review of the decision on 27 May 2025. This was accepted via an acknowledgment letter issued on 9 June 2025. The review conclusion letter was issued on 13 October 2025. The Appellant appealed to the Tribunal on 10 November 2025 on the grounds that the 4-year correction limit meant the Supplier cannot correct the VAT error, leaving the Appellant without a remedy via the Supplier. HMRC issued its application to strike out that appeal on 22 January 2026.

The relevant Law

[10]The statutory framework governing repayment of overpaid VAT is contained in s80 VATA 1994. So far as relevant, s80 provides as follows:
"80(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 … (2) The Commissioners shall only be liable to credit or repay an amount under this section on a claim being made for the purpose. (7) Except as provided by this section … the Commissioners shall not be liable to credit or repay any amount accounted for or paid to them by way of VAT that was not VAT due to them."
[11]The right of appeal to this Tribunal in respect of a claim under s80 is conferred by s 83(1)(t) VATA 1994, which provides that an appeal shall lie to the Tribunal with respect to:
"a claim for the crediting or repayment of an amount under section 80 …"
[12]Section 35 VATA 1994 sets out provisions relating to the refund of VAT to persons constructing certain buildings. So far as relevant s35 provides as follows: 35 Refund of VAT to persons constructing certain buildings. (1)Where— (a)a person carries out works to which this section applies, (b)his carrying out of the works is lawful and otherwise than in the course or furtherance of any business, and (c)VAT is chargeable on the supply.. or importation of any goods used by him for the purposes of the works, subject to subsections (2) to (2C), the Commissioners shall, on a claim made in that behalf, refund to that person the amount of VAT so chargeable.[13]Section 30 VATA 1994 and Schedule 8, Group 5, Item 4 VATA 1994, read together establish that the supplies of the Bespoke Kitchen & Island should have been zero-rated. 30 Zero-rating (1)Where a taxable person supplies goods or services and the supply is zero-rated, then, whether or not VAT would be chargeable on the supply apart from this section— (a)no VAT shall be charged on the supply; but (b)it shall in all other respects be treated as a taxable supply; and accordingly the rate at which VAT is treated as charged on the supply shall be nil. Schedule 8, Group 5, Item 2 The supply in the course of the construction of— (a)a building designed as a dwelling or number of dwellings or intended for use solely for a relevant residential purpose or a relevant charitable purpose; or […] of any services related to the construction other than the services of an architect, surveyor or any person acting as a consultant or in a supervisory capacity. Schedule 8, Group 5, Item 4 The supply of building materials to a person to whom the supplier is supplying services within item 2 or 3 of this Group which include the incorporation of the materials into the building (or its site) in question[14]Section 35(1) VATA 1994 permits HMRC to refund VAT that is chargeable on the supply of goods used by persons constructing certain buildings. It does not permit HMRC to refund VAT that has been incorrectly charged at a rate that was not applicable.[15]Although the original claim was made under the DIY Housebuilders Scheme, the appeal is, in substance, a challenge to HMRC’s refusal to refund VAT alleged to have been incorrectly charged by the Supplier. That challenge necessarily depends upon there being a valid claim under s80 VATA 1994.[16]The Tribunal’s jurisdiction in this case therefore depends upon there being a valid claim under s80 VATA 1994. In the absence of such a claim, no right of appeal arises under s83(1)(t) VATA 1994 and the Tribunal has no jurisdiction to hear the appeal.[17]Rule 8(2)(a) of the Tribunal Rules provides that the Tribunal must strike out the whole or part of the proceedings if it has no jurisdiction in relation to the proceedings.[18]The question of whether a recipient of a supply (as opposed to the supplier who accounted for the VAT) may make a claim under s80 VATA 1994 directly against HMRC, and by extension whether this Tribunal has jurisdiction to hear an appeal in respect of such a claim, has been definitively addressed by the higher courts.[19]In Revenue and Customs Commissioners v Earlsferry Thistle Golf Club [2014] UKUT 250 (TCC) ("Earlsferry"), the Upper Tribunal held that the First-tier Tribunal has no jurisdiction to hear a claim for repayment of VAT wrongly paid by the recipient of the relevant supply. Following a decision of European Court of Justice (Canterbury Hockey Club & Anor (Taxation) [2008] Case C-253/07) that such supplies ought to be exempt, the appellant had sought repayment from HMRC of the VAT it had paid. The Upper Tribunal allowed HMRC's appeal and struck out the proceedings, holding that s80 VATA 1994 confers the right to claim repayment exclusively upon the person who accounted for the VAT to HMRC on their own VAT return. The recipient of the supply has no such right.[20]That position was confirmed by the Supreme Court in Revenue and Customs Commissioners v Investment Trust Companies [2017] UKSC 29 ("Investment Trust Companies") which held as follows: under s80 VATA 1994, the only person entitled to claim back overpaid VAT from HMRC is the person who accounted for it on their VAT return; where a customer believes that it has been overcharged VAT by its supplier, that is a commercial matter between the parties, and the customer's remedy is to pursue the supplier: and s80(7) VATA 1994 provides a complete statutory exclusion of any other route by which overpaid VAT may be reclaimed from HMRC.

Discussion and decision

[21]I consider that HMRC’s application to strike out must be granted. My reasons are set out below.[22]The starting point is the plain wording of s80(1) VATA 1994. The right to make a claim under that section – and therefore the right of appeal to this Tribunal under s83(1)(t) – belongs exclusively to a person who "has accounted to the Commissioners for VAT for a prescribed accounting period". That means the person who completed and submitted VAT returns to HMRC and paid the VAT. In this case, that person was the Supplier, not the Appellant.[23]The Appellant is the recipient of the supply. He paid VAT to the Supplier as part of the price he paid for the goods or services supplied to him, namely the Bespoke Kitchen & Island. The Appellant did not account for that VAT to HMRC on any VAT return and is therefore not a person falling within s80(1) VATA 1994. The Appellant therefore has no right to make a claim under that section.[24]In the absence of a valid claim under s80 VATA 1994, no right of appeal arises under s83(1)(t). The Tribunal’s jurisdiction is entirely statutory and extends only to appeals which Parliament has expressly conferred upon it. The absence of a valid s80 VATA 1994 claim means that the Tribunal has no jurisdiction in respect of this appeal. That is the clear effect of decisions of Earlsferry and Investment Trust Companies.[25]I recognise that the Appellant may feel that he has suffered an injustice in having paid VAT which, he contends, was incorrectly charged by the Supplier. However, the fact that the Appellant may now have no effective remedy against the Supplier does not confer jurisdiction on this Tribunal. As the Supreme Court made clear in Investment Trust Companies, the VAT statutory scheme is exclusive, even where this produces harsh outcomes. I therefore conclude that this Tribunal has no jurisdiction to entertain this appeal.

Disposal

[26]For the reasons set out above HMRC's application to strike out is GRANTED and the appeal is STRUCK OUT pursuant to Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.

Right to apply for permission to appeal

[27]This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. Release date: 24 April 2026